Barton v. Dunlap

• Decision Date: 26 November 1901
• Citation: 8 Idaho 82,66 P. 832
• Parties: BARTON v. DUNLAP
• Court: Idaho Supreme Court

66 P. 832

8 Idaho 82

BARTON v. DUNLAP

Supreme Court of Idaho

November 26, 1901

ORAL AGREEMENT FOR SALE OF REAL ESTATE.-An oral agreement, where there is part performance for the sale of real estate, may be enforced under section 6008 of the Revised Statutes of this state.

WHEN MAY BE ENFORCED.-Valuable improvements placed upon real estate under oral agreement to purchase removes the bar statutes of frauds, and the purchaser may enforce his contract in a court of equity.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Reversed and remanded, with costs to the appellant.

Orland & Smith, for Appellant.

The statutes of Idaho provide that no estate or interest in real estate except for leases for one year or less can be created granted, assigned, surrendered or declared, except by an instrument in writing. (Idaho Stats., sec. 6007.) In this state by statute the equity rule prevails that part performance of an oral contract, for the sale of real estate removes the bar. (Rev. Stats., sec. 6008.) It is universally held both in this country and in England, that part payment of the purchase price, entry under the contract, and retention of possession is sufficient part performance, and that under these conditions the contract will be enforced; and if improvements have been made by the purchaser, there is much more reason for the enforcement of the contract. (3 Pomeroy's Equity Jurisprudence, 8th ed., sec. 1409; Day v. Cohn, 65 Cal. 508, 4 P. 511; Love v. Watkins, 40 Cal. 548, 6 Am. Rep. 624; Murray v. Jayne, 8 Barb. 613; Calanchina v. Branstetter, 84 Cal. 249, 24 P. 149.) The appellant on the fifth day of June, 1897; and for a long time prior thereto, was in the absolute, notorious and exclusive possession of the lot, and the respondent had actual notice of such possession, and of appellant's rights and claim, and if the respondent was a purchaser at all, which we deny, he was so in his own wrong, and is not entitled to relief, and should be decreed to convey. (Starkey v. Starkey, 136 Ind. 349, 36 N.E. 287; Robinson v. Thrailkill, 110 Ind. 117, 10 N.E. 647; Rev. Stats., secs. 3015, 3016.) The appellant being in possession of the lot at the time of the transfer, and having an equity therein, the respondent was bound to take notice of that right, even though he had not had notice. (Bird v. Dennison, 7 Cal. 304; Bryan v. Ramirez, 8 Cal. 462; 68 Am. Dec. 340; Morrison v. Wilson, 13 Cal. 500, 73 Am. Dec. 593; Hunter v. Watson, 12 Cal. 375, 73 Am. Dec. 543.) The respondent taking the legal title to the property with notice of the equity and claim of appellant, he being in possession and having erected substantial improvements, took the same subject to the rights of appellant, and a resulting or constructive trust arose, and will be enforced against him. (1 Pomeroy's Equity Jurisprudence, 8th ed., secs. 729, 730; Jones v. Van Doren, 130 U.S. 684, 9 S.Ct. 685; Harris v. McIntyre, 118 Ill. 275, 8 N.E. 182; Murphy v. Whitney, 140 N.Y. 541, 35 N.E. 930.) The statute of frauds has no application to resulting or constructive trusts arising by operation of law. (Peabody v. Tarbell, 2 Cush. (Mass.), 227; 22 Am. & Eng. Ency. of Law, 1st ed., 46-50.) The statute of frauds will never be allowed to support a fraud, or permit one to be perpetrated. (Robbins v. Robbins, 89 N.Y. 252; Moore v. Crawford, 130 U.S. 122, 9 S.Ct. 447.)

Forney & Moore, for Respondents.

The alleged contract between Hallett and defendant is not binding on the townsite company. (Duffy v. Hobson, 40 Cal. 240, 6 Am. Rep. 617; Armstrong v. Lowe, 76 Cal. 616, 18 P. 758; Grant v. Ede, 85 Cal. 418, 20 Am. St. Rep. 237, 24 P. 890; Kleinhaus v. Jones, 68 F. 742; and cases cited.) The equitable relief of specific performance of contract is not a matter of right, strictly speaking, but rests in the sound discretion of the court, upon an impartial view of all the circumstances surrounding the matters in controversy. (Vincent v. Larson, 1 Idaho 241; Cooper v. Pena, 21 Cal. 404; Bruck v. Tucker, 42 Cal. 346, 353; Semour v. De Lancy, 6 Johns. Ch. 222, 2 N. Y. Ch. Rep., L. ed., 106; Hennessey v. Woolworth, 128 U.S. 538, 9 S.Ct. 109, 32 L. ed. 500.)

STOCKSLAGER, J. Quarles, C. J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, J.

This case is here on appeal from the district court of Latah county. The appeal is based upon an order overruling a motion for a new trial, and also from the judgment. The complaint alleges that since the fifth day of June, 1897, plaintiff has been and now is the owner in fee and entitled to the possession of lot numbered 17, block 5, of the town of Juliaetta, said county and state, together with hereditaments, etc., thereunto belonging; that defendant now is, and for a long time has been, asserting and claiming an estate or interest in said premises adverse to the plaintiff the exact nature of which claim of the defendant is unknown to plaintiff; that said claim is without right either in law or equity; that the defendant has no right or title to, or interest in said property, or any part or portion thereof; that on the 7th day of June, 1898, plaintiff demanded of defendant possession of said premises; that said defendant refused to deliver possession, and still refuses to so deliver the possession thereof, and has used and occupied the same without consent of plaintiff, and against his will; that the reasonable value of the use of said premises is reasonably worth twenty-five dollars per month, no part of which has been paid, etc. Then prays that the defendant be required to set forth the nature of his claim; that plaintiff be deemed to be the owner, in fee simple, of said premises, and that his title thereto be quieted as against any and all claims of the defendant, etc.; that the defendant be ordered to deliver possession of said premises to the plaintiff, and be forever enjoined and debarred from asserting any claim to said lands or premises; that plaintiff have judgment for the sum of $ 400 rental for said premises from July 7, 1898, to time of commencement of this suit, for costs of suit, etc. Defendant answered, admitting that he is in the possession of the property in controversy, and has been since the year 1895; admits the demand and refusal to surrender possession to plaintiff. The other allegations of the complaint are denied. By his cross-complaint he avers that he is entitled to a deed from plaintiff to the lot in dispute, by reason of a purchase from the Juliaetta Townsite Company and payment in full therefor; and a prayer for equitable relief. All averments of the cross-complaint, by a stipulation made in open court, are to be treated as denied. By the record it is shown that a jury was waived and trial had. Plaintiff introduced deed from Rupert Schupfer and wife, to E. T. Barton, dated June 5, 1899, which included the lot in controversy. E. T. Barton testified he was acquainted with the property and the rental value; it was worth twenty-five dollars per month. On cross-examination said he was the owner of the property in controversy, was not acquainted with the rental value of property in Juliaetta to any great extent. "I don't know what store buildings rent for. I don't know what the rental value of buildings or property in Juliaetta is. I have talked with a number there who told me what they were paying. This property is used as a livery-stable. There is a building upon it. Do not know the size of the building." Plaintiff then rested. Being called by defendant, the same witness testified: "Q. Mr. Barton, who was in possession of that lot at the time that this deed from Mr. Schupfer to you was made? A. I think Mr. Dunlap was. The court. The defendant? A. The defendant. Did not know who erected the livery barn on the lot; believe that Mr. Dunlap (defendant) did--had been told so. Have talked with Dunlap with reference to it since getting the deed. I knew when I got the deed that Dunlap was in possession and running the livery barn. Mr. Schupfer told me so. Mr. Schupfer was the party from whom I got the lots. Quite a large number deeded to met at the same time. Don't know how many. Mr. Schupfer did not tell me at the time he deeded it to me that Dunlap owned the lot. He told me that Mr. Dunlap had a barn on the property, but that he (Schupfer) had never received any money under the contract that the property was to be sold under, and he didn't hesitate to give me a warranty deed for the property. He did not tell me that Dunlap paid for the lot. At the time these lots were deeded to me, on the 5th of June, I did not become the owner under this deed of all the property mentioned in it. There was an understanding that I was to deed certain parts of it to other parties. The names of the parties are George Langdon, I. C. Hattabaugh, George Webber, Charles Snyder, Frank White, Spottswood & Veatch. I do not think of any more besides myself. Potter was not one. I think the consideration paid was $ 150 at time deed was delivered. The way these lots came to be deeded to me was that it was adjusted by those that had interests in it it would be deeded to me and afterward we would divide up among ourselves the best way we could. Mr. Schupfer claimed these lots prior to this time." In answer to question as to whether anyone else claimed an interest in these lots and attention being directed to whether Webber et al., said he did not know, but believed they had through the Juliaetta Townsite Company. He was not a member of that company. At the time the deed was given does not think there was a bond or contract between Schupfer and the townsite company. Had been a bond, but thinks it was forfeited. Rupert Schupfer testified property in controversy is part of his homestead. "In 1891 I contracted with I. C. Hattabaugh for the...