tends strongly to show that Horace moved some furniture and brought his wife and two children to the farm in 1907, and that his wife remained there, looking after the household affairs, practically all the time until the father's death. The evidence relied upon by counsel for appellees as not in harmony with this we think is either unreliable or entirely consistent with the testimony on behalf of appellant to the effect that the wife stayed for various special reasons in La Harpe for short periods of time after 1907.

Counsel for appellees strenuously insist that appellant's statements and actions after his father's death were, many of them, inconsistent with his claim that he had a contract with his father for the 160 acres. Conceding that there is testimony in the record as to certain of these statements that tends to support this argument, we can reach no other conclusion from this record than that all of appellees fully understood from the time of the father's death that Horace claimed the home farm. Indeed, in their original bill for partition filed in this case they alleged that he was the only heir who refused to meet and discuss with the others the matter of the partition of said premises, and the answers of some of the appellees to the original bill contain statements in harmony with this allegation.

Counsel differ as to the value of the home farm. No specific proof is found in the record as to what the land was worth. Counsel for appellees claim it was worth $100 an acre at the time of the trial, while counsel for appellant insist that it was not worth that amount, but argue that even if it was worth that amount at the time of the trial it was worth much less at the time the contract was entered into, and that this court has held that if a contract was fair and equitable when it was made it could not become unfair and inequitable by circumstances which might afterwards arise. (Dalby v. Maxfield, 244 Ill. 214.) Considerable evidence was introduced tending to show that the father and Horace were accustomed to use intoxicating

liquors to excess. The evidence also tends strongly to show that at the time of the trial appellant had entirely ceased the use of any intoxicating liquors. We do not think this evidence has a material bearing on the vital issues in this case.

To justify a court in decreeing specific performance of an oral contract for the conveyance of land the proof must be clear and conclusive of its existence and terms. (Reynolds v. Wetzler, 254 Ill. 607; Rotes v. Rotes, 277 id. 183.) While an oral contract of this kind, and all of its terms, must be clearly and satisfactorily proven, we think the weight of authority is that such a contract may be proved by other than direct evidence; that where the facts, including the acts of the parties, raise a convincing implication that the contract was actually made and satisfy the court that its terms and provisions are sufficient to justify its enforcement it should be upheld. (Willis v. Zorger, 258 Ill. 574, and cases cited.) In this case we not only have circumstantial evidence and the statements of the deceased which tend strongly to show that such contract was made, but we have the direct evidence of witness Bright, whose testimony, in our judgment, stands unimpeached as to an actual contract having been made between the father and son. There is nothing unreasonable as to the terms of this contract as stated by Bright. They are similar to those that are frequently made between a parent and child to obtain the child's care and assistance in the last years of the parent's life. The weight of the evidence tends strongly to show that the terms of the contract as stated by witness Bright were carried out by appellant and his family satisfactorily to the father during all of his life, and his own statements, sworn to by twelve or fifteen unprejudiced witnesses, fully support the testimony of Bright as to the terms of the contract. We do not find any actual variance between the allegations of the cross-bill on this point and the proof, as contended by counsel for appellees. If there was a contract for the conveyance of this land,

as alleged in the cross-bill and as proved by the evidence in the record, it has been fully performed by appellant, and from the evidence before us we are compelled to conclude that appellant could not be recompensed for his services to his father except by specific performance of the contract as prayed for in the cross-bill.

Counsel for appellees also argue that possession was not taken by appellant under the contract and that no permanent improvements were made by him, and that it is necessary to show that possession was taken and such permanent improvements were made in order to enforce an oral contract of this nature. In Warren v. Warren, 105 Ill. 568, this court considered the question of possession and improvements and said that the plaintiff in error in that case had possession so far as the premises were capable of being possessed under the circumstances of the case, and it was there said also that it was not indispensable to a part performance that permanent improvements be made in order to take the case out of the operation of the statute. This doctrine was approved on both of these points in Gladville v. McDole, 247 Ill. 34, and Dalby v. Maxfield, supra. In neither of these cases was the complainant entitled to possession until after the death of the other party to the contract, and in neither of them did the complainant have, nor could he have, possession under the contract before the death of the parent, as that would have been contrary to the terms of the contract, as it is here. Under the reasoning of these cases we consider the argument of counsel for appellees on these points without merit.

It is argued by counsel for appellees that the conclusion that a contract was made is not in harmony with the testimony that the father paid the taxes, or the fact that the appellant and his wife, after filing this cross-bill, filed claims for their services in taking care of the father during the last years of his life, in the county court of Hancock county, against the estate of the deceased. Conceding that their ar

gument on these points has merit, neither of these facts is controlling as to there being such a contract. It was held in Anderson v. Manners, 243 Ill. 405, that the payment of taxes by the original owner subsequent to the making of the alleged contract for conveyance of the land was not decisive. It was also held in the recent case of Fletcher v. Osborn, 282 Ill. 143, that the filing of a claim against the estate of the deceased was not conclusive that no oral contract for the conveyance of the land by the deceased had been entered into. It was there stated that while the filing of such claim against the estate of the deceased was inconsistent with his claim that he owned the property upon the death of the deceased, the claimant may have realized that it might be difficult to make the required proof of a contract of that kind, and determined, in the event he failed to prove the contract, to secure some remuneration for the services that he had performed. The same may be said here. Then, too, it is quite possible that the filing of the claim was done under the advice of counsel, and was not caused, alone, because appellant doubted whether or not he had a contract with his father for the conveyance of the land. A claim against the estate of a deceased person must be filed within a year after the date of letters of administration or letters testamentary, and as a case such as this might not be finally decided until after such year was up, the filing of such a claim against the estate is a mere legal precaution and not a confession of disbelief in the validity of the alleged contract.

The evidence in this case, as frequently happens in contests of this kind, is very conflicting and in many respects inconsistent with the claims and arguments of both parties. There is merit in the argument of counsel for appellant that some of the testimony of appellees, on account of their interest in this litigation, was incompetent. Regardless of this question, we think that, considering all the evidence in the case and the character and opportunity of the wit

nesses to know the facts, the weight of the evidence supports strongly the conclusion that an oral contract was actually made by the father with this son and carried out by the son, as heretofore stated,

The decree of the circuit court is reversed and the cause remanded, with directions to dismiss the original bill as to the 160-acre home farm and grant the relief prayed for in the cross-bill. Reversed and remanded, with directions.

(No. 12294.-Reversed and remanded.)

THE PEOPLE, for use, etc., Plaintiff in Error, vs. FRANK HOLTEN et al. Defendants in Error.

Opinion filed February 20, 1919-Rehearing denied April 2, 1919.

I. PUBLIC OFFICERS when tax-payers may maintain a bill in equity against a public officer and his sureties. A tax-payer in a municipality may maintain a bill in equity in behalf of himself and all other tax-payers against a former city treasurer and his sureties to require the return to the city treasury of commissions unlawfully withheld by him upon the amount of taxes collected by him as ex-officio collector of taxes.

2. MUNICIPAL CORPORATIONS-when municipality cannot compromise claim for less than full amount due. Where the amount of commissions unlawfully withheld by a city treasurer on taxes collected by him as ex-officio collector is not disputed and it is not claimed that he or the sureties on his bond are insolvent or that the amount due cannot be collected, the city cannot compromise its suit on his bond for less than the amount due and thereby bar the right of tax-payers to have the full amount returned to the city treasury.

WRIT OF ERROR to the Circuit Court of St. Clair county; the Hon. GEORGE A. CROW, Judge, presiding.

JOHN HAY, for plaintiff in error.

TURNER & HOLDER, for defendant in error Frank W. Puderer.