1. SPECIFIC PERFORMANCE. — In appellant's action to have appellee required to perform an alleged contract to sell appellant 98 acres of land, held that both the making of the contract and its performance must be proved by clear and convincing evidence. 2. SPECIFIC PERFORMANCE — BURDEN. — Appellant failed to discharge the burden resting upon him to prove his case by clear and convincing evidence. 3. SPECIFIC PERFORMANCE. — Where the evidence as to the original agreement is inconclusive it cannot be said that the right to specific performance has been established by clear and convincing evidence.
GEORGE ROSE SMITH, J.
Hudspeth testified to the making of the parol agreement and to an initial cash payment of $200, his daughter (then thirteen years old) corroborating these statements. He enumerated several additional cash payments and offered checks supposedly representing other credits on the purchase price. The total of checks and cash is only $2,850, however, and Hudspeth's evidence as to his discharge of the remaining obligation is vague. He relies heavily on a purported final payment made in November, 1942, by a check for $2,000, but the appellee's evidence as to this particular check is more convincing. Thomas says that the $2,000 check was in repayment of a loan made to appellant in February, 1942, and he proved satisfactorily that at that time he withdrew $2,000 from a postal savings account and turned it over to Hudspeth. Too, there is reason to think that the asserted oral contract could not have been made in April, 1942. Both appellant and his daughter fixed the date by associating it with the departure of a tenant named Massey. But Massey testified that he left in April, 1943, and if this is true the $2,000 check dated in the preceding November could not have been a part payment.
Thus the evidence as to the original agreement is inconclusive. The subsequent conduct of the parties is equally indecisive. It is undisputed that Mr. and Mrs. Hudspeth took possession of the farm and collected the rents from its tenants, but this conduct could as well have been pursuant to the contract as to a father's desire to provide a home for his daughter and son-in-law. The fact that appellee paid the taxes during these years supports the latter view. Hudspeth made some minor improvements, but none that would be considered unusual if he were really living on his father-in-law's property.
There are many other circumstances in the record, but it would add little to this opinion to detail them. We have discussed the salient points, which demonstrate that appellant's proof is not convincingly clear. Decree affirmed.
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