Johnston v. Baldock
| Decision Date | 13 September 1921 |
| Docket Number | 11730,11997. |
| Citation | 201 P. 654,83 Okla. 285,1921 OK 318 |
| Parties | JOHNSTON v. BALDOCK. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 18, 1921.
Syllabus by the Court.
The principle upon which a decree is granted for the specific performance of an oral contract for the sale of real estate is where the party seeking performance, with the knowledge and consent of the promisor, has made payments or has done acts in reliance upon the promise which change the relation of the parties so as to render a restoration of their former condition impracticable, and where it would amount to a fraud upon the part of the promisor to set up the statute of frauds as a defense, and thus to receive benefits of the acts done by the party relying upon the promise.
The statute of frauds was never intended to be used as a shield or as a breastwork to aid any one in the perpetration of a wrong. In all instances, however, the burden is upon the party alleging the oral agreement to clearly establish the same, together with the acts constituting the full performance, or such part performance of the contract as would satisfy a court of equity that it would be inequitable to refuse relief.
The part 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 and lasting improvements, constitute such part performance as will ordinarily warrant a court in decreeing specific performance of the contract.
The possession necessary to take an oral contract for the sale of real estate out of the statute of frauds must be clearly shown by the evidence to refer to and result from, and to have been taken and entered into by virtue of the contract. A prior possession taken under a lease and continued, without a surrender of the premises and a re-entry under the contract to purchase, is wholly insufficient and of no avail, to take the oral contract out of the statute of frauds.
Improvements relied upon in connection with possession must be both valuable and permanent. Slight expenditures are insufficient.
In an action brought under the forcible entry and detainer statute the introduction of evidence by either party showing title to the real estate does not operate to divest the justice court of jurisdiction. In such action possession alone is involved and the action cannot be converted by the acts of either party into an action to try title.
Appeal from District Court, Oklahoma County; James I. Phelps and Edward D. Oldfield, Judges.
Actions by J. T. Johnston against Nancy E. Baldock, and by Nancy E Baldock against J. T. Johnston. Actions were consolidated. Demurrer to the evidence was sustained and J. T. Johnston appeals. Affirmed.
Loyal J. Miller, of Oklahoma City, for plaintiff in error.
Geo. B Rittenhouse and F. A. Rittenhouse, both of Chandler, and Gordon Stater and P. T. McVay, both of Oklahoma City, for defendant in error.
On the 2d day of December, 1919, the plaintiff in error instituted an action in the district court of Oklahoma county, against the defendant in error, to enforce the specific performance of a contract for the sale of lots 25 and 26 in block 7, in Northwest addition to Oklahoma City. For convenience, the parties hereafter will be designated as they appeared in the trial court.
After the plaintiff had introduced his evidence, the defendant filed a demurrer thereto; the grounds of the demurrer being: First, that the evidence was insufficient to entitle plaintiff to the relief demanded; second, that the contract claimed to have been made was not in writing subscribed by the defendant; third, that the plaintiff was in possession of the premises by virtue of a lease between himself and defendant at the date of the contract, and had not surrendered possession of the premises to the defendant prior to the commencement of the instant action. The plaintiff prosecutes an appeal to this court from a judgment sustaining the demurrer, and assigns numerous errors. The errors assigned are practically covered by the second assignment of error, which is that the court erred in sustaining the demurrer.
The evidence discloses that, on the 19th day of October, 1914, the defendant, in writing, leased the premises in controversy to the plaintiff for a term of two years, beginning on the 18th day of October, 1914, and ending on the 18th day of October, 1916, for the consideration of $600, payable $25 per month in advance. Upon the expiration of the lease, plaintiff continued to occupy the premises by paying $25 per month. No different arrangements were made between the parties until July, 1919, when the rents were raised to $35 per month. During the latter part of July, 1919, plaintiff and defendant discussed the sale of the property to the plaintiff. There seems to have been several conversations regarding the sale which led up to an agreement on the 1st or 2d of August, whereby plaintiff was to buy the property, paying therefor the sum of $4,500. This sum was to be paid by the plaintiff assuming a mortgage on the property for $2,200, and to pay to the defendant the balance, to wit, $2,300, at the rate of $25 each month with interest thereon until the full purchase price had been paid.
On the date the parties came to an agreement, it was agreed that the plaintiff would have the papers prepared and bring the same back to the defendant so that she could sign the deed; that he would prepare the papers he was to sign and get his wife's signature to the same; that the monthly payments on the $2,300, with the interest thereon, would approximate $40; that on the 2d day of August, the date of this conversation, the defendant stated to the plaintiff she was needing $45. The plaintiff's reply was:
"All right then, I will just make it $45, and we can adjust that in the next monthly payment."
The plaintiff deposited, on that day, $45, in the Security National Bank to the credit of the defendant and mailed her a duplicate slip showing that the sum had been so deposited. On September 2, he deposited in the same bank $35.49, and on the 4th of October, he deposited $40. Deposit slips for the last two payments were mailed to the plaintiff. On November 1, $39.83 was deposited. Duplicate deposit slip was mailed to the defendant, accompanied by the following letter:
On November 19, the plaintiff received from the defendant the following letter:
On the 1st of December, the plaintiff, in company with Mr. Bernard Miller, went to the home of defendant and informed her that he had come to make the December first payment; that he had brought a mortgage properly executed by himself and wife, and the notes for the deferred payments properly signed; that he also had a deed prepared for her to execute and informed her that if she did not like the form of the deed any satisfactory deed would be satisfactory to him. The plaintiff further informed the defendant that the payment tendered was on the condition that it was to be taken as a payment on the purchase of the property and not as rent. The tender of the money was refused. It further appears that, after the contract of sale, the plaintiff built a storeroom on the premises, and also placed gravel in the basement of the garage so that the latter might be rented for automobiles.
On cross-examination, the plaintiff testified that some time in August, the exact date is not given, the defendant informed him that she would go no further with the deal; that she had sold another piece of property and had become easy on money matters and would not be forced to sell the premises in controversy.
It further appears that the plaintiff, at no time prior to the contract with defendant, had surrendered the possession of the premises to the defendant.
Under section 941, Revised Laws of 1910, a contract for the sale of real property is invalid, unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged, or by his agent.
It is contended on the part of the plaintiff that the above statute has no application in this instance, in view of the evidence presented to the trial court, for the reason that a parol agreement for the sale of real estate is not within the statute of frauds, where the vendee has paid all or a part of the purchase price and taken possession of the property and made valuable and lasting improvements thereon. This proposition is sustained by numerous authorities from almost every state in the Union; but in every instance we find that the payments made must have been made as part of the purchase price, that possession must have been taken under and by virtue of the oral contract, and that the improvements made must have been made by the purchaser under the honest belief that he had a right to make the same, and that such improvements so made must be lasting and...
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