¶1(concurring in part and dissenting in part): I am *625unable to agree that syllabus 3 and the corresponding part of the opinion following Bramwell v. Trower, supra, and Linder v. Warnock, supra, are applicable to the present case. The defendants, in my opinion, did not plead or prove a substantial, meritorious claim to an equitable title. Obviously, the very purpose of summary proceedings in forcible entry and detainer cases is defeated if defendants can assert a claim to title which is unenforceable under the statute of frauds and have the allegation of such a claim result in prolonged delay and extended litigation, during which the defendants retain possession and the plaintiffs are deprived of it. I am aware that such result must follow where the asserted claim to title is meritorious but I think that it should never follow in cases wherein the alleged claim to title is legally unenforceable. In border-line cases I think the proper ruling, in a summary proceeding, is to deny the doubtful claim to title and thus require the party asserting it to bring a proper action in a court having jurisdiction of the subject matter. No ultimate harm can result from such'a ruling because the ruling of the court in a forcible entry and detainer case does not establish a link in the chain of title and the ultimate question of title can be litigated in a proper tribunal without prejudice resulting from the judgment entered in the forcible entry and detainer case, b agree that in cases where it affirmatively appears that the plaintiff, prior to bringing action, knows of the defendant’s substantial claim to title having been created by the execution of a written agreement, under which partial performance has occurred, that the plaintiff should not bring an action in forcible entry and detainer for the purpose of acquiring possession when such action is predicated only upon a default having been made by the defendant after substantial equities have developed. Nothing of the kind, however, develops in the present case. In the case of Linder v. Warnock, supra, a written contract had been executed between the parties and $1,000 had been paid down at the time of the execution thereof. In addition thereto, two substantial payments had been made upon the contract. Default had occurred in other payments but the situation was such that a waiver of right to strict forfeiture might be readily inferred. Under such circumstances, it was held that the rule should be applied to the effect that one claiming to be the equitable owner of the property under a contract of purchase — his claim being substantial, and not a mere pretext — cannot be ousted from possession by a summary pro*626cecding. Similar qualifying circumstances are absent in the present case. In Bramwell v. Trower, supra, the contract to purchase had been partially performed and valuable and lasting improvements had been made; in addition a written memorandum had been entered into between the parties, upon which the defendant relied in part to establish his contract as sufficient under the statute of frauds. No such circumstances are present in the case now before this court. In cases in which the claim to title is not substantial or meritorious because of the operation of the statute of frauds, this court has upheld district courts in denying the defendant’s claim to title in forcible entry and detention cases. (See Hale v. Brown, 119 Kan. 303, 239 Pac. 963; and, also, Dineen v. Olson, 73 Kan. 379, 85 Pac. 538.)
¶2The foregoing necessarily requires consideration of whether the defendants’ asserted claim to title is meritorious. In the present case the evidence substantiated only an oral contract and such a contract as is clearly unenforceable legally under the statute of frauds. In cases sustaining specific performance of a contract originally unenforceable by reason of the statute of frauds, the following elements are usually considered: substantial part performance; the making of valuable and lasting improvements; payment of the purchase price; possession; and the inequities which result when specific performance is denied. Payment alone will not take the parol purchase out of the statute of frauds. (May v. Mograin, 24 Kan. 75; Baldwin v. Baldwin, 73 Kan. 39, 84 Pac. 568.) Loss of the fruits of the bargain is not sufficient. (Baldridge v. Centgraf, 82 Kan. 240, 108 Pac. 83.) The possession of land to constitute a part performance of a contract, unenforceable under the statute of frauds, must necessarily be referable solely to the contract, and not be referable to any other cause. (Hartshorn v. Smart, 67 Kan. 543, 73 Pac. 73; O’Brien v. Foulke, 69 Kan. 475, 77 Pac. 103; Baldridge v. Centgraf, supra; and see, also the dissenting opinion by the now Chief Justice Harvey in the case of Eakin v. Wycoff, 118 Kan. 167, 234 Pac. 63.)
¶3In the present case all of the usual elements were absent except a continuation of possession acquired under preexisting conditions. There had been no substantial performance; no valuable improvements had been made; payment of the purchase price had not occurred; and no inequities had resulted because the defendants had merely remained in possession by paying less than one-half of the amount which the court found to be the reasonable value of the use *627of the property. Nothing is in the case except a contract legally unenforceable under the statute and possession. No change of possession took place and the continuation of the possession was as readily referable to the relationship of landlord and tenant as it was to the claim of the defendants. In some instances a continuation of a previously acquired right of possession may be referable only to a contract unenforceable under the statute of frauds, but such is not true in the present case and it must be true in order to avoid the statute. (See Ducie v. Ford, 138 U. S. 587, 34 L. Ed. 1091, 11 S. Ct. 417.) If the defendants were tenants, the rule applies to them. (See the annotation in 3 L. R. A., n. s., beginning at page 790, and 49 Am. Jur. 748, § 442.) If the defendants were not tenants, they were in the position of judgment debtors following the existence of the relationship of mortgagee and mortgagor. Such being true, the rule applies to them almost without exception. (See Emmel v. Hayes, 102 Mo. 186, 14 S. W. 209, 11 L. R. A. 323, 22 Am. St. Rep. 769; also, White v. Savings Bank, 299 Mich. 109, 299 N. W. 827, 136 A. L. R. 259; and 49 Am. Jur. 789, § 487.)
¶4Sifted on the screen of the foregoing legal principles, the defendants’ claim for specific performance has no substantial merit. If such reasoning be sound, then the case should be reversed with instructions to enter judgment for the plaintiff for immediate possession of the premises because the incident of title asserted by the defendants from the standpoint of legal analysis proves to be a mere pretext by reason of the operation of the statute of frauds. The decision of this court can only result in a new trial on the question of possession; another trial in the district court, in which the question of title may be there decided; and possibly another appeal to this court. In order to avoid such an unnecessary multiplicity of actions, this court should consider whether the claim to title, asserted as an incident to the right of immediate possession, has substantial merit and express itself accordingly; otherwise, the inference from the decision is to the effect that the claim has such merit and unjustified consequences may follow.