Fleming v. Baker

• Decision Date: 04 June 1906
• Citation: 85 P. 1092,12 Idaho 346
• Parties: JULIA FLEMING, Appellant, v. WM. R. BAKER et al., Respondents
• Court: Idaho Supreme Court

85 P. 1092

12 Idaho 346

JULIA FLEMING, Appellant, v. WM. R. BAKER et al., Respondents

Supreme Court of Idaho

June 4, 1906

ORAL CONTRACT FOR TRANSFER OF REAL ESTATE-PART PERFORMANCE-DIVIDING LINE BETWEEN TRACTS OF REAL ESTATE-ESTABLISHED BY CONSENT-STATUTE OF FRAUDS.

1. B and W. entered into a contract to make a certain lane or highway the boundary between their lands, and each took possession of the land falling to him under their agreement inclosed it and exercised acts of ownership over it for more than fifteen years, and B. expended considerable money in preparing the tract falling to him for cultivation, and erected buildings thereon and leased a portion thereof to others, who erected valuable buildings and other structures thereon without objection or protest from W., and W. died before deeds passed between them. Held, under those facts that said agreement does not come within the statute of frauds in regard to oral sales or transfers of real estate.

2. The part performance of said contract brings it within the provisions of section 6008 of the Revised Statutes, and takes it out of the statute of frauds.

(Syllabus by the court.)

APPEAL from District Court of the Sixth Judicial District for Lemhi County. Hon. James M. Stevens, Judge.

Action to quiet title to certain real estate. Judgment for the defendants. Affirmed.

Judgment affirmed, with cost in favor of the respondents.

John C Sinclair and John H. Padgham, for Appellant.

In all cases where the location of the true boundary line is known to the owners of contiguous estates, and they undertake for any reason to transfer land from one to the other by a parol agreement, whereby the location of such known boundary is changed, then the statute of frauds will inflexibly apply, and such agreement will be void. (4 Am. & Eng. Ency. of Law, 2d ed., 860-862.)

Verbal agreements for the exchange of land are within the statute of frauds and are invalid. (Clark v. Graham, 6 Wheat. 577, 5 L.Ed. 334; Purcell v. Miner, 4 Wall. 513, 18 L.Ed. 435; Mather v. Scoles, 35 Ind. 1; Sands v. Thompson, 43 Ind. 18; Dennis v. Kuster, 57 Kan. 215, 45 P. 602; Stark v. Cannady, 3 Litt. 399, 14 Am. Dec. 76; Beckham v. Mepham, 97 Mo.App. 161, 70 S.W. 1094.) There must be a conveyance made and possession taken on both sides in order that the contract may be held binding and without the operation of the statute. (Savage v. Lee, 101 Ind. 514; Baldwin v. Thompson, 15 Iowa 504; Hibbard v. Whitney, 13 Vt. 21; Purcell v. Miner, 4 Wall. 513, 18 L.Ed. 435.)

Where the estoppel sought to be set up involves the title to land which can only be transferred by deed, it cannot be taken advantage of. (McPherson v. Walters, 16 Ala. 714, 50 Am. Dec. 200; Smith v. Mundy, 18 Ala. 182, 52 Am. Dec. 221; Mills v. Graves, 38 Ill. 455, 87 Am. Dec. 314; Hays v. Livingston, 34 Mich. 384, 22 Am. Rep. 533; White v. Hapeman, 43 Mich. 267, 38 Am. Rep. 178.)

Where the payment of a consideration of a contract is denied, specific performance should not be decreed without proof of payment or an offer to pay. (Logan v. McChord, 2 A. K. Marsh. 224.)

Possession alone is not sufficient to take the case out of the statute. (Notes to 8 Am. & Eng. Ency. of Law, 1st ed., 743.)

Because of the laches of respondent Baker in not bringing action for specific performance, he should be barred from any relief in this action. (22 Am. & Eng. Ency. of Law, 1st ed., 1045, and decisions cited in the notes; Seculovich v. Morton, 101 Cal. 674, 40 Am. St. Rep. 106, 36 P. 387.)

The contract sought to be enforced must be fully and clearly proved. (Rice v. Rigley, 7 Idaho 115, 61 P. 209; Green v. Begole, 70 Mich. 602, 38 N.W. 595; Poland v. O'Connor, 1 Neb. 50, 93 Am. Dec. 327.)

When a party is already in possession, the act of retaining possession is so equivocal in its nature that equity will not regard it as a sufficient part performance. (8 Am. & Eng. Ency. of Law, 1st ed., 744, and cases cited; 3 Sergeant & Rawle, 543; 1 Ballard's Annual on Real Property, sec. 388, and cases cited.)

Acts which are referable to something else than the verbal agreement, and which may be ordinarily otherwise accounted for, do not constitute a specific performance. (Pomeroy on Specific Performance, 154, 155; Emmel v. Hayes, 102 Mo. 186, 22 Am. St. Rep. 769, 14 S.W. 209, 11 L. R. A. 323.

On the subject of part performance to take the case out of the statute of frauds, see Howes v. Barmon, 11 Idaho. 64, 81 P. 48, 69 L. R. A. 568, Purcell v. Coleman, supra, and cases cited in the note to Atwood v. Cobb, 26 Am. Dec. 661.

H. G. Redwine and F. J. Cowan, for Respondents.

The agreement was fully and completely performed in every particular, except the passing of deeds. There was a part performance entirely sufficient to make the agreement valid.

L. P. Withington and his successors in interest are estopped from claiming title to the land. (16 Cyc. 765, 768.)

SULLIVAN, J. Stockslager, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This is an action to quiet title to eight and four-tenths acres of land situated in the south half of the northeast quarter of section 4, township 20 north, of range 23, in Lemhi county.

Respondents answered separately, each pleading four separate defenses: (1) A denial of the allegations of the complaint; (2) the establishment of the boundary line by verbal agreement; (3) that in the year 1887, a mutual understanding was had between the defendants Baker and the predecessor in interest of plaintiff, that as soon as patents were issued by the United States to the respective claimants, for their several tracts of land, that it would be to their mutual benefit to enter into a contract to exchange certain parts of their land, making a certain road or highway the boundary, and Baker to convey to the said Withington a tract containing two and eight-tenths acres, and Withington to convey to Baker eight and four-tenths acres of land, and a contract was entered into to that effect in the year 1890; (4) adverse possession under claim of title. The prayer of the defendants is that the plaintiff be enjoined from setting up title, and that defendant Baker be decreed to be the owner of said eight and four-tenths acres of land.

Respondent Bagley's answer shows that he is holding as tenant of respondent Baker.

Trial was had before the court without a jury, and findings and judgment made and entered against the plaintiff. A motion for a new trial was overruled. The insufficiency of the evidence to support the findings of fact is assigned as error.

The following, among other facts, are clearly established by the evidence: That one L. P. Withington, now deceased, was the husband and predecessor in interest of the appellant. Julia Fleming, and the respondent Baker occupied adjoining lands for thirty years, which land was held by them several years prior to the extension of the government survey over them.

Thereafter Withington entered the northeast quarter and the north half of the southeast quarter of section 4, township 20, range 23 in Lemhi county, as a desert claim and obtained a patent therefor from the...