Gilbert v. Sleeper

Belcher, C. C. This is an action to recover possession of 17.67 acres of land. The defendant answered, and by way of cross-complaint set up an equitable defense. The plaintiff demurred, and then answered to the cross-complaint. After trial, judgment waá entered in favor of the defendant, from which, and from an order denying a new trial, plaintiff appealed.

The demurrer to the cross-complaint was properly overruled. If the facts were as alleged, the plaintiff held the legal title to the land in controversy in trust for the defendant, and he was entitled to the relief demanded.

It appears from the record that in September, 1875, one Jacob Gilbert, the husband of plaintiff, was the owner of 160 acres of land in Lake County, and the defendant had a certificate of purchase from the state of a tract of swamp and overflowed land lying adjacent thereto. In that month the parties entered into a verbal contract to exchange parcels of their lands, Gilbert taking the parcel described in the cross-complaint, and the defendant the parcel described in the complaint. Under the contract, each party was to take and thenceforth hold possession of the parcel given him, and they were to execute deeds, each to the other, whenever the defendant should obtain a patent for his land from the state. Gilbert took possession of the parcel given him, and remained in possession of it till he died in April, 1882, and since his death the plaintiff has continued in pos session without offering to surrender it to the defendant. When the contract was made, defendant was in possession of the parcel given him, and has ever since continued in such possession, and without objection from [292]Gilbert or plaintiff, has placed permanent improvements on the land of the value of four hundred dollars. On the third day of December, 1881, Gilbert, being then in very bad health, under advice given him by defendant, and to save the expense and trouble of a settlement of his estate in the Probate Court, for the expressed consideration of five dollars conveyed all of his property, including the 160 acres of land before mentioned, to the plaintiff.

Before making the deed, he exacted from plaintiff, and she agreed, that when defendant should obtain a patent for his swamp-land from the state, she would execute to him a deed for the land in controversy, in accordance with the terms of the contract for exchange. On the sixth day of December, 1881, plaintiff filed a homestead upon all the land conveyed to her by her husband, and on the thirtieth day of January, 1883, she commenced this action. The defendant paid the balance of the purchase-money due on his swamp-land in December, 1881, and on the 20th of "February, 1883, received a patent therefor. Thereafter, on the 10th of March following, he tendered to plaintiff a good and sufficient deed of the parcel which her husband took in exchange, and which is described in the cross-complaint, and she refused to accept it.