Stalker v. Stalker

¶1Opinion by

¶2It 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).

¶31. We do not regard the possession of the real property which was secured and taken by Emily E. Stalker as coming within the rule announced in that case. She came upon the land, it is true, before Mr. Stalker went back to Idaho, never to return; but she was not in possession of the property, nor did she secure a right thereto, as a tenant or otherwise, until he abandoned the premises. It is possible this plural wife might *297never have been treated as Hagar and driven off the land as a trespasser by the person so holding the legal title so long as he lived. She was never compelled to pay any rent for the nse of the real property, bnt she could undoubtedly have been evicted if an action had been instituted for that purpose, unless she could have interposed the plea that she took possession under and made valuable improvements pursuant to an oral contract that she was to secure the legal title when she had become so pleased with the new home as not to leave it and return to Idaho and thereupon possibly subject Mr. Stalker to indictment and prosecution for polygamy.

“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.

¶4As 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 *298a home. If he had died intestate soon after possession of the premises was delivered to the plural wife, it is reasonable to suppose that the defendants, who are the issue of a lawful marriage, could have had no great love for the plaintiffs and would have undertaken to eject them from the land, as is evidenced by an averment in the answer to the effect that Alexander Stalker died seised of an estate of inheritance in and to the real property, and the defendants as his sole heirs at law are entitled thereto.

¶5The 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).

¶62. In the case at bar, no direct evidence was offered tending to substantiate the making of the parol agreement, because both parties thereto were dead. Such fact, however, is sought to be established by inference and by declarations against interest made by Mr. Stalker. It must be admitted that the oral admissions of a party ought to be viewed with caution: Section 868, subd. 4, L. O. L. Such avowals may not have *299been correctly understood, or accurately remembered so as precisely to be repeated. So, too, in tbe pretended iteration, words, phrases or sentences may have been purposely misquoted in order to promote a selfish interest. The plaintiff J. L. Stalker testified that at different times he had heard his father say the land in Baker County, Oregon, was for the plaintiffs and their mother. The plaintiff "W. R. Stalker testified he had heard his father several times say to his mother: “The place is for you and the children.” The stipulated testimony of the plaintiff W. H. Stalker is to the effect that his father and mother were members of the Mormon church, and each had told him they had been married according to the rites of that religious organization.

“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. ’ ’

¶7The 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. ’ ”

¶8The 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.”

¶9Notwithstanding 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.

¶10It 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 *301fatter informed tim te tad not given tte deed and did not intend to make any to Emily E. Stalker. Tte prayer of tte bill being also for general relief, tte plaintiffs as tte sole teirs of Emily E. Stalker, deceased, are entitled to a specific performance of tte terms of tte parol agreement whereby ste was given possession of tte real property and made improvements upon it. Tte decree of this court, when the mandate is entered in tte court below, stall stand as and for a conveyance by each of tte defendants of all tis right, title, interest and estate in or to tte real property described in tte complaint, and also each of tte defendants and all persons claiming or to claim by, through, or under them, or either of them, any estate or interest in or to tte premises or any part thereof, will be barred, and tte plaintiffs’ title thereto quieted.

¶11Tte decree of tte trial court should therefore be affirmed, and it is so ordered.

¶12Affirmed..