Duckett v. Duckett

Miller, J., delivered the opinion of the Court. This appeal is from an order sustaining a demurrer to the bill filed in January, 1889, by the appellant against the appellee, and dismissing the same. This bill alleges and charges that in September, 1881, the defendant, who is complainant’s father, being jiossessed of about four hundred acres of land, voluntarily divided the same into as many parts as he had children, and in consideration of natural love and affection, gave to each child a portion of the land so divided, that given to complainant being a tract of about sixty-two acres, of which he was put in possession by his father; that at the same time, his father made a will, which was exhibited to his children, by which he devised to each the portion laid off and designated as such child’s part, including the sixty-two acres to the complainant; that his father caused this tract to be surveyed, and had the same transferred on the assessment books to the name of the complainant, who has paid the taxes thereon ever since such transfer; that relying on this gift and assurance of his father, as well as upon his said will, complainant entered upon this tract in September, 1881, and has ever since remained in possession as owner thereof; ³⁵⁹ that during this occupancy and still relying upon these assurances of his father that this land was to be, and in fact was, his property, he has exprended about $1000 in permanent improvements thereon, by erecting a dwelling house, and out-buildings, and in repairing the barn, and has improved the land by fertilizers, and has also paid taxes thereon since 1884, to the amount of $59.10; that since February, 1885, the premises have been rented to one Simpson, as a yearly tenant of complainant, at a crop rent, who has been allowed to remain in undisturbed possession until about the 1st of December, 1888, when the defendant served a notice upon him to quit at the end of thirty days, and has since instituted proceedings to oust him as a tenant holding over ; and complainant charges that to be thus dispossessed of the land would be greatly to his injury, and would leave him without compensation for the money he has expended in permanent improvements as aforesaid, as well as without remedy at law. The relief prayed is 1st, that the agreement as witnessed by this will of his father, to devise or convey to complainant the premises in question, "may be specifically enforced; 2nd, that complainant may be reimbursed for all money expended upou the premises during his occupancy of the same; 3rd, that a receiver may be appointed to receive the rents and xxrofits of the premises pending this suit; 4th, that defendant may be restrained by injunction from taking any other or further proceedings to oust the tenant of the complainant pending these proceedings; and 5th, for general relief.

The exhibits are the contract of renting between Simpson and the complainant, dated the 9th of February, 1885, and the tax bills paid by the latter, which