104 Wash. 619 | Wash. | 1919
Appellants brought suit in King county to compel specific performance of an oral gift of real estate. To the second amended complaint, a demurrer was interposed, which being sustained, appellants elected to stand upon their complaint and judgment of dismissal was entered against them, from which they appeal.
The second amended complaint alleges, in substance, that appellants are husband and wife, and that the respondents are the parents of the appellant wife; that in March, 1912, the respondents were the owners of
Two points appear to have been raised by the demurrer : first, that the agreement to convey, being oral, is within the statute of frauds; and second, that the action is barred by the statute of limitations.
Upon the first point, the law appears to be well settled that a sufficient part performance will take the case out of the statute of frauds, and this applies to gifts as well as to contracts.
“The doctrine of part performance applies to gifts as well as to contracts. An oral gift of land, or promise to give land, followed by the vendee’s taking possession of the land in pursuance of the promise and making valuable and permanent improvements in reliance thereon, may be enforced by a court of equity
See, also, Clancy v. Flusky, 187 Ill. 605, 58 N. E. 594, 52 L. R. A. 277; Burris v. Landers, 114 Cal. 310, 46 Pac. 162; Wainwright v. Talcott, 60 Conn. 43, 22 Atl. 484; Barrett v. Schleich, 37 Ore. 613, 62 Pac. 792. This court has recognized this rule in Coleman v. Larson, 49 Wash. 321, 95 Pac. 262, where Judge Fullerton, speaking for the court, said:
“An agreement for a gift of land will not, of course, be enforced on proof alone of the promise to give. This is true whether the promise be oral or in writing. But where the promisee accepts the promise, enters into possession and makes improvements on the land, or does some other act on the faith of the promise which materially changes his condition, the promisor will be required to make good the gift.”
The second point raised is not so easily decided. We have said:
“Courts of equity in cases of concurrent jurisdiction consider themselves bound by the statutes of limitation which govern courts of law in like cases, and this is rather in obedience to the statute than by analogy. Hence, if the statute would bar an action at law, it will be equally a bar in equity, the mode of relief making no difference.” Hotchkin v. McNaught-Collins Imp. Co., 102 Wash. 161, 172 Pac. 864.
“In the case before us, the contract, which must he treated as an agreement to convey, and not a conveyance, specifies no time at which a deed should he made. The cause of action for its enforcement did not therefore accrue until after demand for the deed or the lapse of a reasonable time. According to the evidence,*623 Meigs made a demand for a deed from Gardner as soon as he learned where he was, and the first time he saw him after the contract was made. That was certainly within a reasonable time, and this action was begun very soon, afterwards, and it follows that it is not barred by the statute of limitations. Indeed, it may be said that the cause of action did not really accrue until appellant Gardner refused, upon demand, to execute a conveyance of the property.”
We conclude, therefore, that the complaint states a cause of action sufficient to call for an answer on the merits.
Reversed, with instructions to overrule the demurrer.