French v. Castleberry, 5-3461

• Decision Date: 08 February 1965
• Docket Number: No. 5-3461,5-3461
• Citation: 238 Ark. 1038,386 S.W.2d 482
• Parties: James H. FRENCH, Appellant, v. B. C. CASTLEBERRY et ux., Appellees.
• Court: Arkansas Supreme Court

Page 482

386 S.W.2d 482

238 Ark. 1038

James H. FRENCH, Appellant, v. B. C. CASTLEBERRY et ux., Appellees.

No. 5-3461.

Supreme Court of Arkansas.

Feb. 8, 1965.

D. A. Clarke, McGehee, for appellant.

Robert B. Gibson, Dermott, for appellees.

GEORGE ROSE SMITH, Justice.

This is a suit by the appellant, James H. French, for specific performance of an oral contract by which he was to buy two farms, totaling 554 acres, from the appellees, B. C. Castleberry and his wife. French relies upon part performance to take the contract out of the statute of frauds. Our rule is that both the making of the oral contract and its performance must be proved by clear and convincing evidence. Hudspeth v. Thomas, 214 Ark. 347, 216 S.W.2d 389. The only question before us is whether the chancellor was right in holding that the proof did not sufficiently establish part performance of the agreement.

The plaintiff and his two brothers owned various farm lands individually, but they cultivated property as a partnership, French Brothers. The partnership, as a tenant, had operated the two Castleberry farms for some years before the oral contract in question was made. The plaintiff testified, and the chancellor found, that on September 10, 1957, the Castleberrys orally agreed to sell the farms, together with certain farming equipment, to the plaintiff for $86,000. Pending completion of the sale the partnership continued to rent the lands from year to year. When the abstracts of title were brought down to date the examining attorney discovered a defect of title that had to be corrected by litigation. On July 3, 1959, while the curative suit (Fee v. Leatherwood, 232 Ark. 817, 340 S.W.2d 397) was on appeal to this court, Castleberry notified James French by mail that he was canceling any oral contract that French might be relying upon concerning the purchase of the farms. The present suit was filed almost four years later, giving rise to a plea of limitations that we need not consider.

To support his claim of part performance the plaintiff attempted to prove that he took possession of the property, made substantial improvements, and paid part of the purchase price. We agree with the chancellor's conclusion that the proof lacks the clarity and cogency that the law demands.

First, possession: When the parol agreement was made French Brothers had possession of all the 554 acres except for a parcel of 13 acres that the Castleberrys were occupying as their home and curtilage. A month or two later the Castleberrys went to Louisiana. The plaintiff and his family then moved into the manor house on the 13-acre tract, where they were still living at the time of the trial.

These facts do not establish such possession as is needed to satisfy the statute of frauds. James French's occupancy of only 13 of the 554 acres manifestly did not take the case out of the statute. Ozan Lbr. Co. v. Price, 219 Ark. 709, 244 S.W.2d 486. The partnership's possession of the remaining land cannot supply the deficiency, because possession, to be sufficient, must...