139 Minn. 152 | Minn. | 1918
This is an action for the specific performance of an oral contract of sale of real estate with a prayer for general relief. There were findings for the defendants and the plaintiff appeals from the order denying his motion for a new trial.
What the plaintiff did was such part performance that the contract was taken out of the statute of frauds. The plaintiff is entitled to specific performance, but for the fact that all of the monthly payments fixed by the contract are not due. The evidence well justifies a finding that the $10 per month was the minimum, but that the plaintiff might pay as much more as he chose; and the conduct of the parties in making and taking payments in irregular amounts and at irregular intervals and often largely in advance of what was then due on the stated monthly basis harmonizes with such view; but there is no such finding nor was there a request for one. The defendant cannot be required to accept payments before due. Until due the plaintiff cannot call in the legal title. Nor can specific performance be enforced upon the theory that the defendant was to execute a written contract embodying the terms of the sale and providing for a warranty deed. The plaintiff testifies that this was the agreement, but the defendant denies it, and there is no finding.
It is true that his possession protects him, and that there cannot be an innocent purchaser from the defendant, and that the defendant cannot recover possession. This protection is not complete relief. He should be protected though out of possession and his interest should not be left uncertain. The contract as found by the court contemplates the delay of full performance for many years. The defendant denies it altogether. The facts are less susceptible of proof as the years pass. In the meantime neither party can know of a certainty wHat his rights are. If the court is unable to quiet this dispute at the suit of the plaintiff until by lapse of time he is entitled to specific performance, the uncertainty continues unless the defendant chooses to litigate. This ought not to be. The right to specific performance of a partly performed oral contract is an equitable interest in land. Benjamin v. Wilson, 34 Minn. 517, 26 N. W. 725. Hnder our statute an equitable owner may maintain an action to determine adverse claims. 2 Dunnell, Minn.
That the evidence to show the contract is now available and later may not be is not without practical significance upon the propriety of a present adjudication. In Slingerland v. Slingerland, 109 Minn. 407, 124 N. W. 19, Mr. Justice O’Brien used this language: “In addition it would seem that now, while the parties to the instrument are alive and capable of testifying fully to the facts, is the appropriate time for the adjustment of this controversy.” This was said in an action by a wife, having an inchoate right of dower which might never vest, to have determined the validity of an antenuptial agreement which, unless the action were sustained, could only be determined when upon the death of the husband the inchoate dower interest became vested. There as here the only effect of the decree was to determine the right.
Under the circumstances stated we are satisfied to hold that the plain- ■ tiff is entitled to an adjudication of his equitable title which rests upon the legal title of the defendant.
There is no need of further evidence unless to bring the account to date, phere should be a restatement of the account. The findings and conclusions should be amended so as to adjudicate the rights of the parties in the property and determine the payments made and amount due. Then the rights of the parties are fully guarded by the judgment.
Order reversed.