¶1specially concurring.
¶2I concur in most of the views of the majority, but believe we can and should go further and settle the case completely rather than remanding for further consideration by the trial judge. I do not agree to a remand for further hearing.
¶3I am convinced that a person in possession at the time a mortgage is given by another has a right superior to that of the mortgagee under the circumstances of this case when no inquiry was made by the mortgagee of the interests of appellants, parents of the mortgagor, who had paid the mortgagor for the land but their son never got around to giving his parents any sort of conveyance other than delivering possession. The appellants have enjoyed that possession since 1977 and have expended several thousand dollars in making improvements. They reside on the property and claim against all others; the appellees in particular.
¶4Early on the Wyoming Supreme Court stated the rule to be that:
“Possession of real property by a person other than the vendor is notice to the purchaser of whatever rights or interests, legal or equitable, in the fee which the occupant has or claims and which would be disclosed on a proper and reasonable inquiry of him. Indeed, such possession is notice of all facts in reference to the title which due and diligent inquiry of the occupant would disclose. Therefore possession is notice of the rights of those under whom the possessor claims.”
¶5Healy v. Wostenberg, 47 Wyo. 375, 399, 38 P.2d 325, 333-34 (1934) (quoting 66 C.J. 1167).
¶6No reasonable inquiry whatsoever was made to determine the occupants’, appellants’, claims of right. As I see it, the mortgagor’s statement that he owns the property and possesses the same is insufficient and the survey showing two buildings is not an inquiry of who occupies those buildings. It is my view that inspection and inquiry would have revealed the equitable claims of appellants, the persons occupying the buildings.
¶7Later, in Stryker v. Rasch, 57 Wyo. 34, 42, 112 P.2d 570, 573 (1941), it was said “a mortgagee should take notice of the rights *223of the person who is in possession of the premises at the time when he takes his mortgage.”
¶8It seems to me that the proposition was solidly settled in Soppe v. Breed, 504 P.2d 1077, 1080 (Wyo.1973) where it was held that in order to avail themselves of the recording statute, subsequent purchasers to cut off the rights of prior claimants, have the burden of proving they were purchasers in good faith and without notice. Possession by others puts the subsequent claimant on notice and requires reasonable investigation of the rights of such possessors.
¶9To repeat what has already been said, the mere presence of buildings shown by survey proves nothing. A statement by the mortgagor that no one else was entitled to possession is self-serving and may be fraudulent, not only as to the mortgagee but his parents as well, who had paid out cash to the extent of $5,000 and possessed the property. Not only that, it adds nothing to the covenants already included in the mortgage.
¶10All the foregoing is bolstered by many other Wyoming cases on the subject. See also Arndt v. Sheridan Congregation of Jehovah’s Witnesses, Inc., 429 P.2d 326, 329 (Wyo.1967); State ex rel. State Highway Commission v. Meeker, 75 Wyo. 210, 294 P.2d 603, 605 (1956).
¶11Nor does the statute of frauds apply where both parties have performed an oral contract for the sale of lands. Nussbacher v. Manderfeld, 64 Wyo. 55, 186 P.2d 548, 553 (1947); Rohrbaugh v. Mokler, 26 Wyo. 514, 188 P. 448, 451 (1920). The statute of frauds applies only to executory contracts and not to agreements which have been completely executed on both sides. Nussbacher, 186 P.2d 548.
¶12Here the purchase money was paid to appellee son and possession of the land was delivered to appellants and they acted on the delivery by expending several thousand dollars in improvements and occupying the residence they developed thereon. No reasonable investigation was made by appellee Westamerica to develop these important and ruling facts.
¶13I would reverse on both grounds; that proposed by the majority and as I have set out. I see no need to refer the case back to the trial judge for any further consideration. . He heard and decided the case on stipulated facts, as we have. The conclusion is just, as contemplated by Koontz v. Town of South Superior, 716 P.2d 358 (Wyo.1986) with respect to cases decided on stipulated facts.
¶14The title will be settled in that part of the property occupied by appellants and the appellee Westamerica can proceed to foreclose on the balance of land covered by the mortgage and settle title to the balance of the land. This accomplishes the purpose of appellants’ quiet title action.