Schulz v. Hansing

• Decision Date: 02 September 1922
• Citation: Schulz v. Hansing, 36 Idaho 121, 209 P. 727 (Idaho 1922)
• Parties: A. G. SCHULZ, Respondent, v. RICHARD HANSING, Appellant
• Court: Idaho Supreme Court

209 P. 727

36 Idaho 121

A. G. SCHULZ, Respondent, v. RICHARD HANSING, Appellant

Supreme Court of Idaho

September 2, 1922

STATUTE OF FRAUDS-ORAL TRANSFER OF REAL PROPERTY.

1. The mere giving of a check as earnest-money is not sufficient evidence of the purchase of real property, in the absence of a conveyance or other instrument in writing subscribed by the party sought to be charged or by his lawfully authorized agent.

2. Title to real property or an interest therein may not be transferred by word of mouth, without any written instrument purporting to effect a change of possession, and without any change of possession.

3. Held, that the trial court erred in overruling objections to the admission of any evidence on behalf of respondent for the purpose of showing an oral agreement between appellant and respondent for the transfer of real property.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action to recover on oral contract. From judgment for plaintiff defendant appeals. Reversed.

Reversed and remanded. Costs awarded to appellant.

Turner K. Hackman, for Appellant.

Title to real estate, or an interest in real estate, cannot be established by proof of a verbal transfer. (McGinness v Stanfield, 6 Idaho 372, 55 P. 1020.)

The reasonable and proper construction of the provisions of sec. 7976 requires the memorandum or note to be signed by both parties where there are mutual promises, in order to be binding upon both. (Houser v. Hobart, 22 Idaho 735, 127 P. 997, 43 L. R. A., N. S., 410; Kerr v. Finch, 25 Idaho 32, 135 P. 1165.)

Sweeley & Sweeley, for Respondent.

As respondent was not seeking to enforce with Mrs. Foren an agreement to purchase, or with appellant an agreement to sell, any interest in real estate, the objection made by appellant to the introduction of testimony on the ground that it was prohibited by the statute of frauds was not well taken. So far as appellant is concerned the testimony objected to was properly admitted, for the reason that as between the parties to this case, the contract pleaded was entirely executed on the part of respondent.

BUDGE, J. Rice, C. J., concurs, McCarthy and Dunn, JJ., concur in the conclusion.

OPINION

BUDGE, J.

This action was commenced to recover the sum of $ 800 on an alleged oral contract, arising out of the sale of certain land in Twin Falls county.

Respondent alleges in his complaint that he purchased from Mrs. Foren a tract of land in the county of Twin Falls, through her agent, one Smith; that before closing the contract of purchase he met appellant and agreed not to close the contract, but to allow appellant to be substituted in his place and become the purchaser, appellant to pay him the sum of $ 800; that after making this arrangement orally with appellant, in the presence of the owner of the land, Mrs. Foren, appellant and respondent met and mutually agreed that the appellant should become the purchaser of the land from Mrs. Foren and make payments in the amounts agreed to between the respondent and Mrs. Foren. Appellant denies specifically each of these allegations and by his answer alleges that he purchased the land directly from Mrs. Foren without any knowledge whatever that the respondent had any claim or interest whatever in the property.

From the record it appears that Mrs. Foren was a woman about eighty years of age; that appellant is a man past eighty-one years of age; that a real estate agent named Smith received verbal instructions from one or more of the sons of Mrs Foren to make a sale of her land. No written instructions to make the sale were given to Smith. Smith testified, however, that he first sold the land to respondent's brother, who made a deposit of $ 25; that this sale fell through; that he thereafter made a sale of the land to the respondent, who also put up a check for $ 25; that he thereafter took the appellant out and showed him the land, claiming to act as the agent of respondent. Respondent testified that he thereafter met the appellant and priced the land to him at $ 165 an acre, but they afterwards agreed that appellant should purchase the land for $ 155 an acre. The price placed upon the land by Mrs. Foren through her sons was $ 135 an acre, and it was at this price that Smith testified that he sold the land to the respondent. Subsequently appellant, respondent, Mrs. Foren, her two sons, and Smith met in the latter's office, and a contract of sale of the land from Mrs. Foren to appellant was drafted and signed, appellant putting up a check for $ 1000, according to the terms of the contract, and agreeing in the contract to make the balance of the payments as therein stipulated. This contract together with the check was deposited in escrow, in order to...