Baldridge v. Centgraf

• Decision Date: 09 April 1910
• Docket Number: 16,444
• Citation: 82 Kan. 240,108 P. 83
• Parties: D. M. BALDRIDGE, Appellant, v. LEOPOLD CENTGRAF, Appellee
• Court: Kansas Supreme Court

108 P. 83

82 Kan. 240

D. M. BALDRIDGE, Appellant, v. LEOPOLD CENTGRAF, Appellee

No. 16,444

Supreme Court of Kansas

April 9, 1910

Decided January, 1910.

Appeal from Sumner district court; CARROLL L. SWARTS, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS -- Specific Performance -- Grounds. The ground upon which a court, notwithstanding the statute of frauds, may compel the complete performance of an oral contract for the sale of real estate, which has been partly performed, is that such a decree may be necessary in order to avoid injustice toward one who in reliance upon the agreement has so altered his position that he can not otherwise be afforded adequate relief.

2. CONTRACTS -- Possession Taken with Owner's Consent. The mere fact that a proposed buyer has taken possession of real estate with the consent of the owner, upon the faith of an oral agreement for its purchase, does not in and of itself avoid the effect of the statute and justify a decree for the specific performance of the contract.

3. CONTRACTS -- Possession and Deposit of Check for Purchase Price. In the absence of any further showing as to the injury that would result to the plaintiff by a denial of that relief, a decree for the specific performance of an oral contract for the sale to him of a dwelling house is not justified by evidence that, having deposited a valid check for the purchase price with a third person, mutually agreed upon, to be delivered upon the execution of a deed, he took possession of the premises by the owner's permission, but was on the same day served with a notice to vacate.

4. EJECTMENT -- Evidence of Plaintiff's Title -- Admissions. In ejectment, where the defendant claims a right of possession only under a contract with the plaintiff for the purchase of the property, evidence of title on the plaintiff's part becomes immaterial.

F. A Dinsmoor, for the appellant.

James Lawrence, and Levi Ferguson, for the appellee.

OPINION

MASON, J.:

D. M. Baldridge brought ejectment against Leopold Centgraf, who defended on the ground of an oral contract for the purchase of the property, rendered enforceable by having been partly performed. The court found in favor of the defendant and rendered a judgment for the specific performance of the contract, from which the plaintiff appeals.

The evidence showed an oral agreement between the parties for the sale of the property, which included an unoccupied dwelling house. The buyer deposited his check for the purchase price with a third person, mutually agreed upon, to be delivered in exchange for a deed. According to his testimony (which, although contradicted, must be accepted as true in view of the finding of the trial court), he then said that he wanted to move in and the owner told him either that he would or that he could. He did move in, but on the same day received from the owner a writing notifying him to vacate the premises and asserting that he was merely a trespasser thereon. The owner followed up the notice with a proceeding under the forcible entry and detainer article, but, upon the defendant's claiming title, abandoned that for the present action.

Although by putting up his check the defendant did all that was incumbent upon him in that regard, the deposit did not amount to a payment. No money changed hands; the plaintiff received none, the defendant parted with none, and there was therefore none to be repaid in order to restore the parties to their original position. No showing was made that the defendant had improved the property or otherwise incurred expenses or placed himself at a disadvantage in any respect in reliance upon the contract. The case therefore presents the question, which this court has not heretofore been required to decide, whether in and of itself the fact that a proposed buyer has taken possession of real estate with the consent of the owner, upon the faith of an oral agreement for its purchase, so far avoids the effect of the statute of frauds as to justify a decree for the specific performance of the contract. The opinion in Edwards v. Fry, 9 Kan. 417, 423, includes the statement that delivery of possession will take a case out of the statute of frauds, but there the possession was in fact accompanied by the making of permanent improvements, and that circumstance was treated as a determining factor. In Baldwin v. Baldwin, 73 Kan. 39, 45, it was said that while the statement referred to is supported by the weight of authority, if the question were a new one the court would incline to hold that bare possession is not sufficient. The precise question involved is considered in an exhaustive note in 3 L.R.A. N.S. 790, which is supplemented by further citations in 8 L.R.A. N.S. 870. In the introductory portion of the note it is said:

"Whether possession, standing by itself, is enough to do away with the plain words of the act is a troublesome question, upon which there is considerable conflict of opinion, and apparently some confusion. . . . The rule that possession alone is sufficient to remove the bar of the statute appears to have sprung largely from obiter statements to that effect. In many cases in which the rule is announced other acts in part performance besides possession appear, although the courts seem to uphold the oral contract on the ground of possession alone. . . . The idea that one who had gone upon land under an oral contract might be driven off as a trespasser if he could not take refuge behind his agreement is the main support of the English doctrine of part performance, and of the rule that possession alone is sufficient to answer for the writing required by the statute. That it was necessary to break the statute to such an extent to shield the party in possession...