153 P. 52 | Or. | 1915
Opinion by
It is contended that as Emily E. Stalker was living upon the land in Baker County, Oregon, when Alexander Stalker returned to Idaho, she did not take possession of the premises under any contract that the title to the real property should be conveyed to her; for which reason an error was committed in rendering the decree brought up for review. In Roberts v. Templeton, 48 Or. 65 (80 Pac. 481, 3 L. R. A. (N. S.) 790), it was held that where the plaintiff, up to the time of his oral purchase of the interest of a tenant in common in a mine, was in possession under a contract with a cotenant of the vendor, so that his prior possession merged into that under his purchase, there was not such a change of possession under the contract as to take the case out of the statute of frauds, and for that reason specific enforcement of the oral agreement would not be decreed. To the same effect, see the case of Tonseth v. Larsen, 69 Or. 387 (138 Pac. 1080).
“The mere physical fact of possession,” .says a noted author, “is not of itself conclusive, nor even material. The possession must be taken and held with the intent of carrying out and executing the agreement. The existence of this intent is vital, and is the' essential element which the courts require as a condition of the part performance upon which a decree of specific execution may be based. This intent, however, cannot be shown by proving the verbal contract between the parties, for such a course, would be a most vicious arguing in a circle. It must therefore be established by matter outside of the agreement”: Pomeroy, Specific Performance (2 ed.), § 116.
As between strangers a change of possession of land is sufficient to take a case out of the statute on the ground of fraud, and a party who has thus secured possession of real property under a parol contract to purchase the premises may enforce, in a suit in equity, a specific performance of the agreement, because otherwise he might be treated as a trespasser: Coney v. Timmons, 16 S. C. 378. That Mr. Stalker did not drive the plaintiffs and their mother from the land probably resulted from his innate sense of duty to furnish them
The possession of real property, when taken pursuant to an oral contract for the sale thereof, is generally held to be such an act of part performance as to take the case out of the statute of frauds, even without any additional circumstance, such as the payment of the consideration, or the making of improvements: Pomeroy, Specific Performance (2 ed.),§115; Sprague v. Jessup, 48 Or. 211 (83 Pac. 145, 84 Pac. 802, 4 L. R. A. (N. S.) 410); Barrett v. Schleich, 37 Or. 613 (62 Pac. 792). In the latter case, however, it was ruled that, when any relation of affinity or consanguinity was shown to exist between the vendor and vendee under a parol contract to convey land, the making of valuable improvements was essential to establish the right to enforce specific performance of the agreement. To the same effect, see Pugh v. Spicknall, 43 Or. 489 (73 Pac. 1020, 74 Pac. 485).
“That at the time my father left Pine Valley for Idaho he told my mother in my presence that he had bought the place mentioned in the complaint for her and her children, and that he gave it to her, and that it was hers, and that he was going to Idaho and was not coming back, and that he would after a while send her a deed, but that he didn’t give her a deed at that time because he was afraid if he did she might become dissatisfied, sell the place, and return to Idaho and get him into trouble, and for that reason he was going to hold the title for a while, but for her to go ahead and improve the place, and that he would give it to her in consideration of her supporting and taking care of his children. ’ ’
The plaintiff "W. R. Stalker, in referring to a conversation he had with Alexander Stalker, testified:
“Father asked why we had gone away to school and hadn’t stayed on the place, and I told him we didn’t feel a very great interest in the place because he held the deed for it; that he hadn’t given us or mother a deed.
*300 “Q. What did he say?
“A. He said, ‘Ton are really better off the way it is, because I pay the taxes. ’ ”
The defendant A. R. Stalker, referring to a conversation he had at Salt Lake City, Utah, with his father, respecting the demand of Emily E. Stalker, testified:
“He said that she had asked him for a deed to the Pine Yalley property, but he had not made her any deed, and didn’t intend to make her any deed.”
Notwithstanding contrary inferences may reasonably be deduced from the testimony, it is believed the oral declarations so imputed to Alexander Stalker, when viewed in connection with the admissions contained in his letters hereinbefore set forth, unmistakably show that a parol contract had been entered into between him and his plural wife, whereby he surrendered to her the land in Baker County, Oregon, and that when he abandoned the premises and returned to Idaho she thereupon took possession of the same and, relying upon his oral agreement to execute to her a deed of the property, made permanent and valuable improvements thereon.
It will be remembered that this suit is predicated on the assumption that Alexander Stalker had duly executed a deed of the land to the plaintiffs’ mother and had delivered the sealed instrument to some person to be mailed to her. The prayer of the complaint is that the defendants be required to set forth by answer their alleged claim to the premises, that their asserted right to the land may be quieted and the plaintiffs’ title confirmed, “and for all proper and equitable relief.” It is possible such deed may never have been executed, as seems to be indicated by the testimony of the defendant A. R. Stalker, who stated upon oath that his
Tte decree of tte trial court should therefore be affirmed, and it is so ordered.
Affirmed..