Barrett v. Schleich

• Decision Date: 19 November 1900
• Parties: BARRETT v. SCHLEICH et al.
• Court: Oregon Supreme Court

62 P. 792

37 Or. 613

BARRETT v. SCHLEICH et al.

Supreme Court of Oregon

November 19, 1900

Appeal from circuit court, Washington county.

Suit by Mary Ann Barrett against John Schleich and others. From a decree in favor of plaintiff, defendants appeal. Affirmed.

This is a suit to enforce the specific performance of a parol agreement to convey real property. It is substantially alleged in the complaint that Peter Barrett is plaintiff's husband; that the defendants John and Johanna Schleich are husband and wife, and the parents of the defendants Edward J. and Catherine Schleich, and that plaintiff is a daughter of Johanna and a stepdaughter of John Schleich; that on April 10, 1893, said John Schleich, being the owner and in possession of a farm in Washington county Or. (particularly describing it), containing 100 acres, more or less, entered into an agreement with the plaintiff whereby it was stipulated that if she and her husband, who were then living in Portland, Or., would reside upon said farm, he would convey to her, by a good and sufficient deed, 20 acres thereof, to be thereafter selected and surveyed, upon the further consideration that she and her husband should build a house and fences upon, and improve and cultivate, said tract in pursuance of which agreement they on or about that date moved upon said farm, and have ever since resided thereon that about September 1, 1894, it having been agreed by the parties that said 20-acre tract should be definitely selected and conveyed, the plaintiff caused it to be surveyed, and the boundaries thereof, which are particularly stated, were agreed to by said John Schleich, who on October 1, 1894 surrendered the possession of the premises so surveyed to the plaintiff, who ever since has resided on and been in possession thereof; that pursuant to said agreement plaintiff caused a part of said 20-acre tract to be cleared, erected a house and a barn and built a fence thereon, and made other improvements, at a cost to her of $450; that John Schleich, though often requested, has refused to execute to plaintiff a deed of said tract, and on November 20, 1896, with intent to defraud her, and without any consideration therefor, he and his wife executed to their said children a deed for said farm, including said 20-acre tract, which deed has been duly recorded in said county; that said Edward J. and Catherine Schleich, at the time their deed was executed, knew that their father had agreed to convey said tract to plaintiff, that it had been surveyed and the boundaries thereof established, and that plaintiff was in possession of the premises and had made the improvements thereon, notwithstanding which they claim to be the owners thereof. The defendants, having denied the material averments of the complaint, allege, in effect, that about April 10, 1893, the plaintiff and her husband, without any agreement in relation thereto, moved upon the farm of John Schleich, who, by reason of their relationship, permitted them to reside thereon; that, plaintiff's husband having expressed a desire to improve said land by erecting a house thereon in which his family could live separate from that of John Schleich, the latter advanced to him the sum of $150 for that purpose, whereupon plaintiff and her husband erected a small house and stable, the cost of which did not exceed $10, cleared a part of the land at a cost of not more than $24, and built a temporary fence, which is of no value; that ever since the plaintiff and her husband moved upon said premises John Schleich has plowed and cultivated the same, permitted them to take the crops grown thereon, and has furnished a portion of the food eaten and of the clothing worn by the plaintiff and her family; and that her possession of the land is a cloud upon the title thereto, which they pray may be removed. The reply having put in issue the allegations of new matter in the answer, a trial was had, resulting in a decree as prayed for by plaintiff, and defendants appeal.

S.B. Huston, for appellants.

R.F. Bell, for respondent.

MOORE J. (after stating the facts).

It is insisted by defendants' counsel that the court erred in admitting, over their objection and exception, testimony tending to prove the alleged parol contract, before any evidence was offered of the part performance thereof relied upon by the plaintiff to take the case out of the statute of frauds. The point contended for is maintained by Mr. Pomeroy in his valuable work on Contracts (section 107), where, in commenting upon the manner of proving the acts of part performance and the terms of the oral agreement in the order stated, the learned author says: "And this is not a mere question of the order of proofs. It involves the very principle of the jurisdiction." Our statute, as far as applicable herein, provides that no estate in real property can be transferred otherwise than by a conveyance or other instrument in writing, subscribed by the party transferring the same, and executed with such formalities as are required by law. Hill's Ann.Laws Or. § 781. Evidence, therefore of an oral agreement to convey real property, is ineffectual to transfer any estate therein. Where, however, the owner of real property has permitted a purchaser thereof, under a parol contract, to treat the agreement as binding, and, acting upon the faith thereof, to take possession of the premises, and to perform in part the terms to which the parties assented, a court of equity, in a suit instituted for that purpose, can, notwithstanding the statute of frauds,...