147 S.W.2d 872 | Tex. App. | 1941
This is an appeal from a judgment of the District Court of Harris County sustaining a general demurrer and a special exception urged by appellees, H. C. Cockburn and Cockburn Oil Corporation, against an action brought by E. G. Noxon, appellant, for specific performance of an alleged parol contract for the purchase of certain oil, gas and mineral leases claimed to have been owned by him and for damages alleged to have been caused by the breach of said contract.
Appellant alleged that appellees orally agreed to purchase said leases for the sum of $100,000, appellant to retain a 1/24 overriding royalty therein; that appellees took possession of said properties and caused an oil well to be drilled thereon under the terms of said contract, but that, when said well was abandoned as a dry hole, they had refused to comply with the terms of their said contract of purchase or to pay the balance of the purchase price due thereon. Appellant admitted in his pleading that the contract between himself and appellees for the purchase and sale of said properties was "never reduced to writing and signed by both plaintiff and defendants or either of said defendants", but, in anticipation of appellees' plea of the statute of frauds, he alleged the payment of $1,500 on the purchase price for said properties, the delivery of possession, and the use thereof by appellees, including the erection of a derrick, the installation of drilling machinery, and the digging of a slush pit thereon and that, by reason thereof, the value of said properties had been totally destroyed. He alleged that by reason of these facts appellees were estopped from claiming the benefits of the statute of frauds.
Appellees answered by general demurrer and special exceptions, setting up the statute of frauds.
Upon a hearing upon the questions of law presented thereon, the court sustained appellees' general demurrer and their special exception No. 13, wherein they excepted to appellant's petition on the ground that it appeared from the face thereof that appellant's cause of action was based upon a parol agreement for the transfer of land and interest in land and that it disclosed that said contract was in parol and was within the statute of frauds. Appellant having declined to amend, his cause of action was dismissed by the court. *874
The controlling question presented in this appeal is whether, under the facts alleged by appellant, appellees are estopped from claiming the benefits of the statute of frauds.
The parts of said Article
"No action shall be brought in any court in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized. * * *
"4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year."
Article
Our courts have held by an unbroken line of authorities that to relieve a parol sale of land from the operation of the statute of frauds, three elements are necessary: (1) The payment of the consideration, whether it be in money or services; (2) the possession of the property by the vendee; and (3) the making by the vendee of valuable and permanent improvements upon the land with the consent; of the vendor, or, without such improvements, the presence of such facts as would make the transaction a fraud upon the purchaser thereof if it were not enforced. Hooks v. Bridgewater,
It is further held that the payment of the consideration in itself, though it be a payment in full, is not sufficient; nor is possession of the premises, or the making of valuable improvements thereon sufficient; each of these three elements is indispensable and they must all exist. To hold otherwise would, in effect, annul the act. Robertson v. Melton,
It is also held that where the action is brought upon a verbal and executory contract of sale, by the vendor, as in the instant case, a tender to the purchaser of a deed to the property in question, which is not accepted by him, cannot be held to be a payment of the consideration, but that it is merely a tender of performance of the contract. Clegg v. Brannan,
It is the established law in this state that the statute of frauds applies to oil and gas leases, and that: "Since an oil and gas lease is effective as the sale of the minerals in place — the sale of the realty — it, of course, follows that the instrument must be in writing. The same rule applies to a contract for a lease, as well as to the assignment of the rights and estate under a lease." Guerra v. Chancellor, Tex. Civ. App.
Further, it is the established rule that an action for damages for the breach of a contract is, in effect, an action for its enforcement and the statute, in denying an action for its enforcement, likewise denies an action for damages for its breach. Robertson v. Melton,
In the instant case, under the facts alleged, appellant suffered a possible loss in that he might have been able to dispose of said leases prior to the time appellees abandoned said oil well. However, as stated in the case of Robertson v. Melton, supra, the possibility of loss is present in every case of the breach of a parol contract for the sale of real estate. The statute prohibits the bringing of any action upon a contract for the sale of real estate unless some memorandum thereof be in writing and signed, and it cannot be disregarded for the prevention of mere wrongs or to remedy possible wrongs.
In the case of Hooks v. Bridgewater,
Appellant bases his plea that appellees were estopped from claiming the benefits of the statute on the alleged facts that he had turned over the use and possession of said properties to appellees; that they had announced through the daily press and through maps on which ownership of lands were shown, that they had purchased said properties; and that appellees had entered into a drilling contract with one George Echols in which they had asserted ownership thereof. Appellant's pleadings, however, disclose that each of the acts above referred to, with the exception of the allegation that appellees had caused map owners to show that the properties in question belonged to appellees, was done with the knowledge and with the apparent consent of appellant.
In 21 C.J. 1113, in discussing an estoppel of this character, it is said that,
"This estoppel arises where one, by his acts, intentionally or through culpable neglect induces another to believe certain facts to exist, and such other rightfully relies and acts on said belief.
"There are many fundamentals of the law which are applicable to and explanatory of this doctrine of equitable estoppel. No one can maintain an action for a wrong where he has consented to the wrong. He who does not forbid what he can forbid seems to assent."
Our Supreme Court, in the case of Bynum v. Preston,
A careful analysis of appellant's pleadings fails to disclose a sufficient showing of the elements held necessary to sustain his contention that appellees, by their acts, are estopped from claiming the benefits of the statute of frauds and, therefore, under above authorities, the first count in his petition, that of specific performance, cannot be maintained, and since *876 the statute has been asserted as a defense to appellant's cause of action, and the alleged contract being unenforceable when the statute of frauds is interposed as a defense thereto, appellant cannot recover damages for the breach thereof.
It follows from these conclusions that the action of the trial court in sustaining the general demurrer and special exception No. 13 urged by appellees to appellant's trial petition must be sustained; accordingly, the judgment of the trial court is in all things affirmed.
Affirmed.