113 N.W. 1038 | N.D. | 1907
The evidence submitted on the part of the plaintiff in this case tends to show that on the 7th day of April, 1906, he entered into an oral contract with the defendant whereby he purchased from the defendant 1,440 acres of land, being a farm situated about thirty miles from Fargo, and that partial payment was to be made by him therefor on the 9th day of April, 1906; that on the last-named date he tendered the amount agreed to be paid and received to the defendant, and offered then and there to perform the other parts of the contract which were to be by him performed, but that the defendant refused to carry out the terms of sale agreed upon. It is also shown that, after the agreement of purchase and sale was entered into, a verbal agreement for the rental of the same premises was made, by the terms of which the plaintiff was to rent them to the defendant. All of these transactions occurred in the city of Fargo and form the basis of this action, which is brought to enforce the specific performance of the oral contract of purchase and sale. The defendant denies all the allegations of the plaintiff’s complaint, and on the trial offered no evidence in support of his answer. In our statement of the facts we have given the plaintiff the benefit of any doubt as to the construction of the evidence submitted by him. The trial court made findings and entered judgment dismissing the action. From such judgment this appeal is.taken.
Section 5407, Rev. Codes 1905, reads: “No agreement for the sale of real property, or of an interest therein, is valid unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged, or his agent thereunto authorized in writing; but this does not abridge the power of any court
The appellant cites as an authority sustaining his contention Ungley v. Ungley, L. R. 4 Ch. Div. 73, which we are unable to construe in his favor. It was a case where a father verbally promised, in contemplation of the marriage of his daughter, to give her a house as a wedding present, and immediately after the marriage he put the daughter and her husband into actual possession, and it was held that, the verbal promise to give the house having been established, the possession was a part performance which took the case out of the statute of frauds. There are many cases to the same effect. He also cites note 3, pp. 793-798, of 3 L. R. A. (N. S.) in support of his position; but we are unable to find in the cases cited in such note any authorities which we construe as even tending to sustain the claims of the plaintiff. They are to the effect that taking possession is part performance in such a sense as to take an oral contract of purchase and sale of real estate out of the statute of frauds. After an exhaustive examination of the authorities, we find no case holding, conceding that delivery of possession will take such a contract out of the statute, that anything less than actual physical delivery of possession is sufficient. On the contrary, we find a great number of cases holding that there must be a physical, visible change of possession; that the
Possession must be actual, open and notorious to serve as an act of part performance, and with such publicity as attends an open transfer of possession in such a way that the fact itself attests that the parties have bargained. Hill v. Meyers, 43 Pa. 170; Shellhammer v. Ashbaugh, 83 Pa. 28; Cuppy v. Hixon, 29 Ind. 522; Myers v. Byerly, 45 Pa. 368, 84 Am. Dec. 497; Emmel v. Hayes, 102 Mo. 186, 14 S. W. 209, 11 L. R. A. 323, 22 Am. St. Rep. 769. The Supreme Court of the United States has adopted a rule on this class of cases which seems to us to be salutary. It is at least in harmony with the decisions of the courts of most of the states that hold possession part performance. It says that the test in most cases is whether the party let into possession could have been treated as a trespasser in the absence of the parol agreement, and that, it not appearing that the antecedent relations of the defendant to the land in controversy in that case were changed by reason of the contract, and because it would appear that the only change that took place in fact arose from the plaintiff’s withdrawal in favor of the defendant and from their refraining to prosecute an adverse claim, that case was not taken out of the statute, both parties in that case having been in possession; and the court holds that, in order to make surrender of possession to the defendant a
We have considered this case out of its order, because our attention has been called to the fact that great hardship may be saved one of the parties by an early decision, and to this end we have not discussed the principles involved as fully as we might otherwise have.done, but simply give the result of our examination of many authorities.
The judgment of the district court is affirmed.