Hughes v. Kay
| Decision Date | 09 April 1952 |
| Citation | 194 Or. 519,242 P.2d 788 |
| Parties | HUGHES v. KAY. |
| Court | Oregon Supreme Court |
Nathan Weinstein, of Portland, for appellant.
Walden Stout, of Portland (Charles P. Duffy, of Portland, on the brief), for respondent.
Before BRAND, C. J., and ROSSMAN, LUSK, LATOURETTE and WARNER, JJ.
Plaintiff instituted the present suit to determine the rights between the parties in and to certain real property in Multnomah county, Oregon, which property had been deeded to them as 'husband and wife', although the parties had never been married but had lived together as man and wife for a period of about 12 years. Plaintiff claims that defendant had no interest in the real property inasmuch as he purchased it out of his own funds, and that she holds title that is vested in her as trustee for him. As an alternative, he alleges that if the court should find that she has an interest in the property, the same should be partitioned.
In her answer defendant has several defenses, such as estoppel, laches and unclean hands on the part of plaintiff. She then cross-complains, alleging that she and the plaintiff owned a piece of farm property near the city of Sherwood, Washington county, Oregon, and a portion of Tract 37 in Buckman Tract, Multnomah county, Oregon, title to both properties having been taken in the names of the parties as husband and wife; that on or about June 22, 1946, after they had split the blanket, the parties entered into an oral agreement wherein and whereby defendant was to deed to plaintiff her undivided one-half interest in the Washington county property, and the plaintiff was to deed to defendant his undivided one-half interest in the property in question. Defendant then avers that she carried out her part of the agreement with respect to the Washington county property but that plaintiff has 'failed and refused' to deed to her his undivided one-half interest in the property in litigation. She prays for the enforcement of the alleged agreement. Plaintiff in his reply denies the alleged agreement of June 22, 1946. The trial court entered a decree in favor of defendant on her cross-complaint, adjudging her to be the sole owner in fee simple of the whole of the real property described in the complaint. Plaintiff has appealed.
We will first take up defendant's claim under her cross-complaint, inasmuch as it is our opinion that defendant is entitled to prevail on the same. It, therefore, will be unnecessary to consider plaintiff's demands under his complaint.
As the parties were not husband and wife, they held title to the two properties as tenants in common. Merit v. Losey, Or., 240 P.2d 933.
The oral agreement alleged by defendant in her cross-complaint concerns the partition of the two properties between the parties, plaintiff to take the Washington county property and defendant to take the Multnomah county property. The law is well settled that cotenants may make a parol partition of the joint properties among themselves; and where each one, pursuant to such contract, takes exclusive possession of his own share as partitioned, the statute of frauds does not apply and equity will enforce the partition agreed upon. Pomeroy, Specific Performance of Contract (3d ed.) 308, § 121; 49 Am.Jur., Statute of Frauds, 754, § 446; 58 C.J., Specific Performance, 1022, § 230; 1 Restatement, Contracts, 260, § 197. See annotations in 101 A.L.R. 923.
Plaintiff has cited Roberts v. Templeton, 48 Or. 65, 80 P. 481, 3 L.R.A., N.S., 790, and Tonseth v. Larsen, 69 Or. 387, 138 P. 1080. The above cases can be distinguished from the case at bar. In the Roberts case plaintiff did not prove exclusive possession of the property in him. He was in possession of the property under a contract with a cotenant of the vendor, his possession being referable to such contract. In that case we find the following language:
In the Tonseth case the alleged agreement was not proved. There was no change of possession of the premises nor was any consideration given for the alleged agreement.
Plaintiff urges that in order to have specific performance of an oral contract, it is necessary to allege and prove that valuable and permanent improvements have been placed on...
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Blue River Sawmills, Limited v. Gates
...inclines us to accept his judgment as very persuasive. Reeves v. Dickenson, 1956, 208 Or. 360, 364, 300 P.2d 458; Hughes v. Kay, 1952, 194 Or. 519, 523, 242 P.2d 788. We hold that plaintiffs have failed to meet the heavy burden cast upon them to demonstrate with clear, convincing and consis......
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Emmons v. Sanders
...asserting his separate interest in the property as an unmarried person. Merit v. Losey, 1952, 194 Or. 89, 240 P.2d 933; Hughes v. Kay, 1952, 194 Or. 519, 242 P.2d 788. In each of these cases the court regarded the instrument as creating in the grantees a tenancy in common only, in spite of ......
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Brandt v. Brandt
...parties who are not married, but think that they are, creates a tenancy in common. Merit v. Losey, 194 Or. 89, 240 P.2d 933; Hughes v. Kay, 194 Or. 519, 242 P.2d 788; West v. Knowles, 50 Wash.2d 311, 311 P.2d 689. In some states the issue has been whether an attempted estate by the entireti......
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Brazell v. Meyer, 77-2399-E-3
...are regarded as having taken title as tenants in common. See Emmons v. Sanders, 217 Or. 234, 244, 342 P.2d 125 (1959); Hughes v. Kay, 194 Or. 519, 242 P.2d 788 (1952); Merit v. Losey, 1942 Or. 89, 240 P.2d 933 (1952). The question is whether they each have an undivided one-half interest, or......
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Nonmarital Contracts.
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