Stinchcomb v. Stinchcomb , 207 Okla. 59 ( 1952 )

PER CURIAM.

Plaintiffs commenced this action in the district court of Oklahoma county against the defendants for specific performance of an oral contract to require the defendant, Lee Stinchcomb, to convey to plaintiffs, Glen Lee Stinchcomb and Eleanor Sue Stinchcomb, a ten-acre tract of land located in section 21, township 12 north, range 4 west, Oklahoma county, Oklahoma. Also, plaintiffs asked that a trust deed given to V. E. Stinchcomb, trustee, in favor of them for 1% acres of this land be canceled and set aside.

This case was tried to the court without a jury, being a cause of equitable cognizance case. Pursuant to the request of the parties the court made written findings of fact and conclusions of law, finding, among other things, that defendant Lee Stinchcomb entered into an oral contract with plaintiffs’ mother, Eunice A. Stinchcomb, to convey the said ten acres of land to the plaintiffs, Glen Lee Stinchcomb and Eleanor Sue Stinchcomb, who were the children of Eunice A. Stinchcomb and grandchildren of Lee Stinchcomb.

The court further found that said oral contract was entered into and that it was supported by certain considerations; that the said Lee Stinchcomb, who was the grandfather, was interested in preventing any scandal in connection with the divorce case between Eunice Stinchcomb and his son, Glen Stinchcomb, who was the father of these grandchildren; that after agreeing with Eunice Stinchcomb that defendant would deed or “fix” the ten acres for the children, she agreed to get a divorce quietly and give up certain interests in farm machinery and a 40-acre tract of land claimed by her husband, and that pursuant to this agreement Lee Stinchcomb directed that she go to one of his other sons, who was an attorney and trustee defendant in this cause, for the purpose of putting the divorce matter through and taking care of all the details.

The court then concluded as a matter of law that the evidence supporting the above findings was clear, cogent and convincing; that the statute of frauds did not apply because of a part performance and other considerations, and to which findings of fact and conclusion of law defendants took their exceptions, filed their motion for new trial and duly appealed to this court.

It is the contention of defendants that the proof was insufficient to establish a contract between Lee Stinchcomb and Eunice Stinchcomb for the benefit of the plaintiff minors. Defendant cites a number of cases in support of his contention. The law seems to be well settled that there must be a contract that is fairly definite and certain in order that it can be enforced. The cases cited by defendant Lee Stinch-comb hold this to be the rule and undoubtedly it has always been the rule of this court. This being a case for specific performance of an oral contract to convey real estate, the findings of the trial court will be weighed by this court so as to determine whether or not the judgment of said court is clearly against the weight of the evidence. Both sides agree that this is an action of equitable cognizance and that this rule applies.

A review of the testimony in this cause is necessary before one can determine whether the findings of the trial court on the issue as to whether there was a contract is clearly against the weight of the evidence. Defendants, and each of them, in their briefs made the statement that the only evidence to support the finding of the trial court in this respect was the uncorroborated testimony of Eunice Stinchcomb, which they say was not clear and certain.

An examination of Eunice Stinch-comb’s testimony shows that she first talked to Lee Stinchcomb in June, 1943. It is undisputed that Eunice Stinch-comb and Glen Stinchcomb, son of Lee Stinchcomb, have been married since 1933 and had lived on this ten acres of property for quite a while. The separation of these two people first occurred in 1942 or 1943, at which time the father, defendant Lee Stinchcomb, discussed the matter with his daughter-in-law, Eunice Stinchcomb. It seems that he tried to effect a reconciliation between his son and daughter-in-law and showed concern for the welfare of his grandchildren at all times. Lee Stinchcomb, at different times, according to her testimony, stated that he would “fix” the place for the grandchildren so that they would always have a home, referring to the ten acres. The following excerpt (C.M. 73) is indicative of her testimony:

“Q. All right, what else did they tell you? A. And at that time Mr. Stinch-comb agreed to fix this place for those children if I would relinquish all claim in the 40 acres and give Glen the car and farm machinery and other articles.”

Also (C.M.74):

“Q. Did you agree not to ask for any alimony and did you. agree to relinquish all your right in that 40 acres if he would deed this ten acres to you? A. That’s right.”

A great deal has been said by defendants concerning the language used by Lee Stinchcomb in stating he would fix it for the grandchildren. This we believe is explained, as in some places he stated he would deed it; certainly the whole of his various conversations make it pretty certain that when he used the word “fix” that he meant deed it outright to the grandchildren.

Eunice Stinchcomb testified that she relied upon the agreement to deed the ten acres to her children. She did not ask for any alimony, but went on and got a quiet divorce without bringing any scandal upon the Stinchcomb name and generally followed the suggestions and agreements she had entered into with Lee Stinchcomb. Also, she testified that Lee Stinchcomb was to make these deeds out a little bit each year in order to-save himself taxes, which has been described as inheritance tax, but we feel sure they meant gift tax, and it is significant that in deeding his property to his other children that he used this method, which is undisputed in this cause.

According to her testimony the contract and agreement was certain. Lee Stinchcomb and V. E. Stinchcomb both deny the matters testified by her in general. They deny the existence of a contract; however, they do admit that about two years after the divorce that he made a deed to these grandchildren for an acre and one-half of the ten acres involved in this case. They further agreed that certain improvements were made on the ten acres of property and she was in possession without paying anybody rent, and that also Lee Stinchcomb paid for these improvements, agreeing to donate this amount to Eunice Stinchcomb in order that she would forego increasing the child support against his son.

The most that could be said in this case is that the evidence might have been evenly balanced. Certainly the findings of the trial court on the establishment of the oral contract was not clearly against the weight of the evidence. As a matter of fact, the acts and conduct of the defendants would corroborate the plaintiff’s testimony even though they denied the contract.

We think that the finding of the trial court that there was an oral contract between Lee Stinchcomb and Eunice Stinchcomb on behalf of the plaintiffs is not against the clear weight of the evidence, and defendants’ contention is not well taken.

Under the second proposition, or contention of defendants, they argue that the contract, being oral and pertaining to real estate, was void under the statute of frauds and unenforceable in equity by reason of its indefiniteness and uncertainty, and that Lee Stinch-comb was not estopped from availing himself of the statute of frauds. A great number of cases are cited in support of the rule to the effect that an oral contract for the conveyance of real «estate is void under the statute of frauds and would be unenforceable in equity if it was indefinite and uncertain. It is undisputed in this case that the contract was oral. Also, there is no dispute that oral contracts for the conveyance of real estate under the statute of frauds. are void unless there has been a part performance, or circumstances which would prevent the enforcement of the statute of frauds. See Harris v. Arthur, 36 Okla. 33, 127 P. 695, wherein the fourth paragraph of the syllabus is as follows:

‘‘Acts done under a parol contract for the sale of an interest in land most frequently held as such part performance as to take the same out of the statute of frauds, are: (a) The delivery of possession to, or the assumption of exclusive and notorious possession by, the vendee under the verbal contract of sale, and with the knowledge of the vendor, accompanied by part payment of the consideration; (b) or the expenditure of money by the vendee in making improvements, permanently beneficial to the estate, with the knowledge of the vendor, and in pursuance of such parol agreement of sale; (c) or where the parties have so acted under the parol agreement as to alter their position so that a restoration to the former position is impractical or impossible; (d) or where the parties have so acted under the agreement that to allow the defendant to take shelter under the statute, would be to inflict an unjust and uncon-scientious injury or loss upon the other party.”

The above rule seems to have been the rule of this court down through the years and the cases cited by defendant are not in conflict with this general rule. The only question, as it appears, is whether there has been such partial performance of this oral contract, or whether the circumstances are such that it would be now unequitable and unjust to permit the defendants to apply the statute of frauds against the claim of the plaintiffs.

The evidence in the cause shows that there were certain improvements by Eunice Stinchcomb amounting to about $200, paid by her, and $800 given to her by defendants. These were undoubtedly valuable improvements and of a permanent character; however, the testimony surrounding these improvements would not, in our opinion, be sufficient standing alone to bar or make this an exception to the statute of frauds; however, on the other hand, it seems that following the conversations would constitute the agreement between Lee Stinchcomb and Eunice Stinchcomb, that she fully performed all of her part of the contract; that she did not claim any interest in Glen Stinchcomb’s farm machinery, did not raise any question to secure alimony, which undoubtedly she would have been entitled to if the circumstances she related were true, and that she submitted to the wishes of the grandfather in dealing with her husband, who was his son. The divorce action under which she could have made her claim for alimony and for probably a better property settlement and other matters, has now become final and she cannot be restored to her former position. It is significant in this case that defendants have never tried to collect any rent from the plaintiffs; that the possession of the house and ten acres was given to the mother of the plaintiffs in the divorce action and it is beyond any doubt that the parties have'now acted under the oral agreement found to have existed by the trial court; that their positions have all been altered and to allow the defendants now to revoke that agreement, and after the plaintiffs’ mother has given up her rights and position, would certainly be unjust and unequitable.

It is the purpose of the statute of frauds to prevent frauds and not to help perpetrate it, and that is the reason this court has followed the rule down through the years that wherever the facts and circumstances are such that it would be unequitable to apply the statute of frauds, that the powers of equitable estoppel would be applied to the circumstances so as to promote right and justice.

We believe the evidence in this cause was definite and certain enough as to the contract; that Eunice Stinchcomb had performed all of her part of the contract and that Lee Stinchcomb, having reaped benefits for his family and his son, and by his actions causing the plaintiffs’ mother to lose her rights, is certainly now estopped to take shelter under the statutes. ■

It is our opinion that the second contention of the defendant is not well-taken and by reason of the existence of the oral contract and plaintiff’s mother’s possession which was notice to the world, that the trust deed to V. E. Stinchcomb, under all the attending circumstances, should have been canceled and set aside and that the trial court’s findings in this respect should be in all things affirmed.

Having reviewed all the evidence and weighed the evidence in this cause, it is the judgment of this court that the judgment, findings of fact and conclusions of law are not against the clear weight of the evidence, and are in accordance with the decisions of this court and should be in all things affirmed.

This court acknowledges the services of Attorneys Hugh M. Sandlin, F. L. Warren, and C. H. Baskin, who as Special Masters aided in the preparation of this opinion. These attorneys were recommended by the Oklahoma Bar Association, approved by the Judicial Council, and appointed by this Court.

WELCH, GIBSON, DAVISON, JOHNSON, and O’NEAL, JJ., concur. HALLEY, V. C. J., and BINGAMAN, J., dissent.