Halsell v. Renfrow

• Decision Date: 03 September 1904
• Citation: 78 P. 118,1904 OK 97,14 Okla. 674
• Parties: OSCAR D. HALSELL, OSCAR G. LEE, LEONIDAS L. LAND, DANIEL P. WRIGHT AND JEAN H. EVEREST v. WILLIAM C. RENFROW AND R. J. EDWARDS.
• Court: Oklahoma Supreme Court

1904 OK 97

78 P. 118

14 Okla. 674

OSCAR D. HALSELL, OSCAR G. LEE, LEONIDAS L. LAND, DANIEL P. WRIGHT AND JEAN H. EVEREST v. WILLIAM C. RENFROW AND R. J. EDWARDS.

Supreme Court of Oklahoma

Decided: September 3, 1904

Syllabus

¶0 1. STATUTE OF FRAUDS--Authority of Agent. An agreement for the sale of real estate is invalid unless the same or some note or memorandum thereof be in writing and subscribed by the party to be charged or his agent, and such agreement, if made by an agent, is invalid unless the authority of the agent be in writing subscribed by the party sought to be charged.

2. SAME--Construed. A complete contract binding under the statute of frauds may be gathered from letters, telegrams and writings between the parties relating to the subject-matter, and so connected with each other that they may be said to fairly constitute one paper relating to the contract.

3. SAME. A memorandum to be sufficient under the statute of frauds must be complete in itself and leave nothing to rest in parol.

4. CONTRACT FOR SALE OF LAND--Certainty Requisite--Specific Performance. A contract for the sale of lands which a court of equity will enforce specific performance of, must be certain in its terms, and that certainty required has reference to the parties contracting, the terms of the sale and the description of the property, and whenever the property to be conveyed cannot be identified as the property referred to in the contract, specific performance will be denied.

5. SAME--Parol Evidence. Where a sufficient description is given in the contract, parol evidence may be resorted to in order to fit the description to the thing, but where an insufficient description is given, or where there is no description, such evidence is inadmissible. A court will never receive parol evidence both to describe the land and to apply the description.

6. CONTRACT IN WRITING--Alteration of. A written contract cannot be altered except by a contract in writing or by an executed oral agreement.

7. REAL ESTATE--Parol Agreement to Sell--Specific Performance. A parol agreement for the sale of real estate may be specifically enforced where there has been such part performance of the contract as would make it impracticable to place the parties in their original positions, and thus make it a fraud upon one of the parties not to enforce the agreement.

8. SAME--Part Payment. The payment of the purchase money is not alone such part performance of an agreement to sell real estate as will authorize a court to enforce its specific performance. But part payment and taking possession in good faith, or taking possession with the knowledge of the vendor and making valuable improvements, constitute such part performance as will ordinarily warrant a court in decreeing specific performance of the contract.

9. CONTRACTS--Acceptance--Payment to Agent Sufficient, When. The acceptance of benefits under a contract which will impose consent to all the obligations arising from such acceptance, must be a voluntary acceptance with a knowledge of the facts affecting such acceptance, and payment of money to an agent will not constitute such voluntary acceptance unless it is shown that he was authorized to accept such payment.

10. REAL ESTATE BROKER--Authority of. A real estate broker who has lands listed with him for sale, is only authorized to find a purchaser and submit a proposition, and he has no authority to make an agreement of sale unless specifically authorized in writing by the owner.

11. SAME--Payment of Money is at Buyer's Risk. A real estate broker who has lands placed with him for sale, has no authority to collect or receive money on the purchase price of such lands, and if a purchaser without demanding the written authority of the agent, pays the agent money to be applied on the purchase price of land, he makes the broker his own agent for the purpose of receiving the money for the owner, and makes such payment at his own risk.

STATEMENT OF FACTS.

This is an action for specific performance of an alleged agreement to convey real estate, brought in the district court of Oklahoma county, Oklahoma, by Oscar D. Halsell, Oscar G. Lee, Leonidas L. Land, Daniel P. Wright and Jean H. Everest, plaintiffs, against William C. Renfrow and R. J. Edwards, defendants. The material averments of the petition are substantially as follows: That on and prior to February 14, 1901, W. C. Renfrow the defendant, was the owner of a tract of land in Oklahoma county, Oklahoma, described as follows: A part of the north half of the northwest quarter (1-4) of section four (4), in township eleven (11) north, range three (3) west of the Indian Meridian, more particularly described as follows: Beginning at a point where the middle alley between Noble and Chickasaw streets in South Oklahoma Addition to Oklahoma City intersects the east line of said quarter section, running thence west on a line parallel with the north line of said quarter section to the west line thereof; thence north along said west line five hundred and eighteen (518) feet to the southwest corner of the parcel deeded to Francis Ketch; thence north on a line paralled with said north line twelve hundred and twenty-two and forty-three hundredths (1222.43) feet to the southeast corner of the land deeded to Francis Ketch; thence north on a line parallel with the west line of said land three hundred and ninety-two (392) feet to the north line thereof; thence east along the north line of said land to a point five hundred and eighty (580) feet west to the northeast corner of said land; thence south on a line parallel with the east line of said land three hundred (300) feet; thence east on a line parallel with the north line of said land one hundred and eighty (180) feet, thence south on a line parallel with the east line of said land three hundred and eighty (380) feet to the southwest corner of the Washington public school grounds on said land; thence east to the east line of said land; thence along said east line to the place of beginning. That George J. Shields was a real estate dealer at Oklahoma City and was duly authorized by Renfrow to sell said lands to such purchaser as he might be able to obtain for the price of ten thousand dollars. That these plaintiffs offered Shields ten thousand dollars for said land. That Shields accepted said offer for Renfrow and plaintiffs paid him on the purchase price thereof, the sum of $ 500.00 which Shields received and accepted as the agent of Renfrow. That Shields the same day wired Renfrow at Joplin, Missouri that he had sold the land for five (?) thousand dollars. That in answer to said telegram Renfrow by wire ratified and confirmed said sale. That in pursuance of said agreement Renfrow made, subscribed and acknowledged a deed, describing said land, and reciting a consideration of ten thousand dollars, and brought said deed to Oklahoma City for the purpose of consummating said sale. That at the time of making said agreement of sale, the parties in good faith believed that Renfrow was the owner of forty acres of land as described, but on investigation, it was discovered that Renfrow's vendor had conveyed a small portion of said land to another person, and it was mutually agreed to deduct $ 200 from the purchase price as consideration for said deduction in land, and Renfrow agreed to execute another deed, correctly describing said land and omitting said portion previously sold. That Renfrow prepared a new deed, conforming to the corrected description, and after signing and acknowledging same, deposited the same with the Western National Bank with directions to deliver the same to plaintiffs on the payment of the balance of the purchase money. That plaintiffs thereafter tendered to the bank the balance due as purchase price of said land and demanded the deed, but that the bank refused to deliver said deed for the reason that Renfrow had directed them to demand a greater sum than was due.

That R. J. Edwards, with full notice and knowledge of plaintiff's rights and their claim to said land, entered into a fraudulent arrangement by which Renfrow conveyed said land to him.

That the defendants refuse to convey said land to plaintiffs, although they are ready and willing and able to pay the whole of the purchase price of said land, and now offer to do so. That after the purchase of said land and with the knowledge and consent of said Renfrow and before the conveyance to Edwards, the plaintiffs went into actual possession of said land, and thereupon discovered that one Springmeyer was in actual possession of a portion of said land under a lease which would not expire for many months, and said Renfrow refused and neglected to surrender to them full possession, but consented to such occupancy as they might enjoy in connection with said tenant. That they, with the consent of Renfrow, went upon said land and tore down fences and destroyed improvements found on the land. That the five hundred dollars paid to Shields on said purchase price is retained by Renfrow.

Wherefore plaintiffs pray for a decree of specific performance, that the deed to Edwards be cancelled, and that if there are any incumbrances on the land that proper deductions be made in the purchase price and judgment rendered accordingly.

This suit was commenced March 8, 1901.

The defendant Edwards answered first by general denial, and admitted that he had purchased the land in question from Renfrow and paid him therefor the sum of ten thousand dollars. That he went into possession on the 9th day of March, 1901, and had been in undisputed and sole possession ever since said date, and until January, 1902, when the plaintiffs undertook to unlawfully and wrongfully take possession of said land and began the erection of a building thereon.

The defendant Renfrow for his separate answer denied that he had ever made a contract of sale of said land to plaintiffs; that Shields was authorized to sell said land or make any contract of sale, and...