180 Ind. 697 | Ind. | 1914
This was an action for the specific performance of a parol contract for the sale of real estate, brought by appellee against appellant. A trial by the court was had with special findings of facts and conclusions of law stated thereon and judgment for appellee, decreeing performance by appellant.
The facts found by the court are as follows: That appellee and appellant both reside in Charlestown, Clark County, opposite each other on the same street, and have so resided since June 29,1905; that for some time prior to said date the appellant was the owner of lot 166 in said town; that appellee resided on another lot in said town; that on June 15, 1905, appellant proposed to sell appellee her house and lot 166 for $1400, on the following terms, to wit: appellee to take possession of and move on said lot and pay the appellant $7 per month in advance, being six per cent interest on $1400, and that appellee was to have the privilege of
The appellant by assignment of errors, questions, (1) the sufficiency of the complaint; and (2) says that the court erred in its conclusion of law; (3) that the court erred in overruling the motion for a new trial.
The objections to the complaint are (1) that it does not allege that appellee took possession of the lot with the knowledge and consent of appellant; in this he is in error, for he does say that “with said understanding and agreement * * * he entered upon said lot and has lived and resided thereon ever since,” etc., (2) that the contract was a parol lease for a term of years with a naked option to buy, and that a parol lease for a term longer than three years, is within the statute of frauds; that the contract to execute a mortgage is also within the statute of frauds; that an option to purchase must be based on a sufficient consideration. An entry upon lands, payment of the purchase money, or a part thereof, and making improvements on the land under’ a parol contract to purchase will take the contract out of the statute of frauds. O’Brien v. Knotts (1905), 165 Ind. 308, 75 N. E. 594; Swales v. Jackson (1890), 126 Ind. 282, 26 N. E. 62; McFarland v. Stansifer (1905), 36 Ind. App. 486, 488, 76 N. E. 124.
There is no question but that the payment of the $7 per month in advance for the property, which the complaint alleges and the court finds was to be considered as six per cent interest on the purchase price of the lot, and the taking possession of the same, and the making of valuable and lasting improvements thereon will authorize and warrant a court in decreeing specific performance of the contract. This case is “on all fours” with Herman v. Babcock (1885), 103 Ind. 461, 3 N. E. 142, and the case of Goles v. Peck (1884), 96 Ind. 333, 49 Am. Rep. 161, except that in those cases the contract was in writing. Without repeating the citations here, we refer generally to the decided cases and text-books cited and quoted from in the opinion of this court in said cases. We have examined the evidence in the ease, and are convinced that it sustains the court in its findings of facts in every particular.
Judgment affirmed.