Anselmo v. Beardmore

• Decision Date: 26 June 1950
• Docket Number: No. 7554,7554
• Citation: 219 P.2d 946,70 Idaho 392
• Parties: ANSELMO v. BEARDMORE.
• Court: Idaho Supreme Court

Page 946

219 P.2d 946

70 Idaho 392

ANSELMO v. BEARDMORE.

No. 7554.

Supreme Court of Idaho.

June 26, 1950.

Elder, Elder & Smith, Coeur d'Alene, George W. Beardmore, Lewiston, for appellant.

Everett E. Hunt, Raymond T. Greene, Jr., Sandpoint, Edmund T. Brigham, Newport, Washington, for respondent.

KEETON, Justice.

This action was brought by Frank H. Anselmo, respondent, against Lucy E. Beardmore, appellant, to compel specific performance of a contract to convey four acres of real estate located in Lot Five (5), Section twenty-six (26), Township fifty-six (56) North, Range five (5) West Boise Meridian, Bonner County, Idaho. The land in question was part of a larger tract comprising approximately forty acres, and commonly known as the Beardmore Mill Yard, all of which was enclosed with a fence extending around the external boundaries.

Along the north line of Lot five (5), which is also the north section line of Section twenty-six (26), is a public road, known as United States Highway No. 2, and thirty or thirty-three feet of the north side of Lot five (5) had formerly been deeded for road purposes. The land to which plaintiff seeks title is bounded on the north by this right of way and on the west by the west boundary line of said Lot five (5), the starting point for measuring the land being thirty-three feet south of the north boundary line of twenty-six (26) south along the west boundary line of Lot five (5).

The land agreed upon was two acres in length along the highway and two acres deep, making four square acres. The land was definitely established, and the actual distance on each side of the tract would be the square root of the number of square feet in four acres, which determination was simply an arithmetical problem.

After the land to be purchased had been designated, but not surveyed, the plaintiff, on August 21, 1945, went to the home of the defendant in Priest River advising her that he desired to purchase the four square acres in the northwest corner of the Mill Yard (part of Lot five (5)), and plaintiff thereupon gave the defendant a check for $800.00 as half payment on four acres, and the defendant gave plaintiff a receipt hereinafter set forth.

Thereafter, the four acres in question were marked out on the ground by Mr. Tiggelbeck, an engineer, in metes and bounds, and this description was sent to George W. Beardmore, defendant's son, who ordered an abstract and prepared a deed from his mother to plaintiff, which defendant signed, acknowledged, and attached $2.00 in revenue stamps, canceled Sept. 9, 1946. There was some delay in furnishing the abstract, not the fault of the plaintiff, and after the same had been prepared, it was delivered to plaintiff who took it to an attorney for examination, and was advised that there was an easement for a road over part of the four acres. Plaintiff then insisted that he had purchased a clear title and requested the defendant to have the title cleared. Plaintiff thereafter purchased the dominant estate and then demanded the deed which defendant refused to deliver, and this action brought for specific performance.

From the evidence introduced, the court found that on the 21st day of August, 1945, the plaintiff and defendant entered into an oral agreement by the terms and provisions of which the plaintiff agreed to buy and the defendant agreed to sell the real estate described as follows:

'Beginning at a 1 1/4"' iron pin on the south right of way line of the state highway 33 feet south and 1314.7 feet west of the southeast corner of Section Twenty-three (23) Township Fifty-six (56), North Range Five (5) W.B.M.; thence south 417.3 feet to a 1 1/4"' iron pin; thence east 417.3 feet to a 1 1/4"' iron pin; thence north 417.3 feet to a 1 1/4"' iron pin on the south right of way line of the state highway; thence west along said right of way line 417.3 feet to place of beginning, in Bonner, County, Idaho.'

That the consideration for the sale and purchase was $1600.00, payable $800.00 on the 21st day of August, 1945, which was paid, and the balance of $800.00 to be due and payable upon delivery to the plaintiff by the defendant of a good and sufficient abstract of title to said real estate showing good and merchantable title thereto, and the delivery to the plaintiff of a good and sufficient warranty deed executed by the defendant, conveying said real estate to the plaintiff; that the defendant delivered to the plaintiff a receipt for the down payment of $800.00 in words and figures as follows:

August 21st, 1945

'Received of Frank Anselmo _____

Eight Hundred and 00/100 _____

Half (Part) payment on 4 acre tract

Beardmore Mill Site

$800.00

/s/ Lucy E. Beardmore.'

and that the consideration paid and to be paid was the fair and reasonable value of the property, and further found:

'That in pursuance of the oral agreement heretofore referred to, the plaintiff entered into the actual peaceable possession of said real estate with the consent and knowledge of the defendant herein, and commenced to improve the same by leveling and filling said ground so agreed to be sold and by the erection of improvements thereon consisting of a farm implement and farm supply store; shops and a warehouse, all at an expense in excess of Forty Thousand Dollars ($40,000.00).'

'That the defendant failed and neglected to submit to the plaintiff for his examination, an abstract of title to said real estate until approximately one year (1) after the date of the purchase of said real estate. That when said abstract was submitted to the plaintiff, he promptly had the same examined by an attorney, and plaintiff was then advised by his said attorney that said real estate was not free and clear of all encumbrances, but in truth and in fact said real estate was encumbered by an easement over and across the same for a right of way to certain real estate lying south of the real estate purchased by plaintiff from defendant. That said easement was thereupon called to the attention of the defendant. That the defendant failed to take the necessary steps to remove said encumbrances from the real estate purchased by plaintiff from defendant, and as a result thereof this plaintiff was compelled to and did purchase said real estate served by the easement for right of way purposes over the lands heretofore described. That after said purchase plaintiff on numerous occasions demanded of the defendant that she deliver to him a good and merchantable deed to said premises, and on said occasions this plaintiff was able and willing and so advised the defendant that he would pay to her the remaining Eight Hundred Dollars ($800.00) of the purchase price upon receipt of said deed. That the defendant has failed and refused and now refuses to deliver said deed to the plaintiff herein.'

'That the plaintiff at all times referred to herein was ready, able, and willing to pay the remainder of said purchase price to the defendant. That said plaintiff did on the 5th day of August, 1948, tender to the Clerk of this Court the sum of Eight Hundred Dollars ($800.00) as and for the balance due the defendant upon the contract mentioned above. That said Eight Hundred Dollars ($800.00) now is and ever since the 5th day of August, 1948, been in the possession of the Clerk of said Court for delivery to the defendant herein upon the receipt by said Clerk of a good and sufficient Warranty Deed executed by the defendant herein conveying the real estate heretofore described to the plaintiff.'

'That the plaintiff herein entered into possession of the real estate heretofore described on or about January 1, 1946, and that said date was within one (1) year from the date of said contract.'

'That the plaintiff herein was justified in going into the possession of the real estate heretofore described, and that he had the legal right so to do, and that no damages have been sustained by the defendant herein by virtue of the said plaintiff going into the possession of said real estate.'

On the findings the court entered a decree in favor of the plaintiff requiring the specific performance of the contract. From the judgment the defendant appealed.

Appellant assigns errors challenging the sufficiency of the complaint and of the facts proved to support the findings, and contends that the contract comes within the statute of frauds. Sec. 5-205, I.C. and 9-505 I.C., and for that reason is unenforcible; that the quantum of proof offered to sustain the findings is insufficient to warrant a decree of specific performance, claiming among other things that there was no mutuality, no meeting of minds and no sufficient performance to warrant the entry of the decree, no consent to enter upon the premises, and claiming that the plaintiff was a trespasser. Further, that the land contracted for was uncertain and impossible to determine.

The amended complaint was in the usual form for specific performance. No essential allegation was omitted and we conclude the demurrer was properly overruled.

The action in question is not barred by the statute of frauds.

Equity will not hesitate to enforce an oral contract falling within the provisions of the statute of frauds where the circumstances are such that the refusal to execute it would amount to a fraud and equity will not permit the statute to be used as an instrument or means of effecting that which it was designed to prevent.

Where one party to an oral contract has in reliance thereon so far performed his part of the agreement that it would be perpetrating a fraud upon him to allow the other party to repudiate the contract and set up the statute of frauds in...