87 P. 900 | Okla. | 1906
Pending the litigation, the plaintiff in error, J. R. Sutherland purchased the land in controversy from the defendant Wood, and filed his interplea in this action, claiming to be a purchaser of the premises in good faith, for a valuable consideration, without notice.
The defendant Reiser being a non resident, publication service was had as to him. The defendant Wood made no appearance, although personal service was had upon him, and no answer was filed by him, and the cause was tried to the court as between the interpleader, J. R. Sutherland, and the plaintiff, Fred Taintor.
The court, after hearing the evidence, found the issues in favor of the plaintiff, and against the defendants and the interpleader, and rendered a decree for specific performance of the contract. From this judgment the interpleader, J. R. Sutherland, appeals.
Opinion of the court by It is contended by plaintiff in error that the parol contract which was made the basis of this action was void, and non-enforceable under the statutes of Oklahoma, *429 and this is the only question relied upon for a reversal of the cause. This contention cannot be sustained.
The plaintiff in the court below did not rely solely upon the contract, but based his contention upon the ground that the contract was fully executed by the plaintiff, in this, that the consideration was paid, and that the plaintiff was put in possession of the premises, and immediately commenced to improve the land and make permanent improvements thereon; and hence that the contract was enforceable, although it was merely a parol agreement, and no note or memorandum was made between the parties at the time said contract was entered into. And this was the finding of the trial court, after hearing the evidence that was adduced upon the trial.
In Halsell v. Renfrow,
"A parol agreement for the sale of real estate may be specifically enforced where there has been such part performance of the contract as would make it impracticable to place the parties in their original positions, and thus make it a fraud upon one of the parties not to enforce the agreement."
And that:
"The payment of the purchase money is not alone such part performance of an agreement to sell real estate as will authorize a court to enforce its specific performance. But part payment and taking possession in good faith, or taking possession with the knowledge of the vendor and making valuable improvements, constitute such part performance as will ordinarily warrant a court in decreeing specific performance of the contract."
We think this case is decisive of this question, and that the court was fully warranted, under the evidence, in decreeing *430 specific performance. There being no error in the record, the judgment of the court below is affirmed.
Pancoast, J., who presided in the court below, not sitting; all the other Justices concurring.