Pugh v. Gilbreath

SUPPLEMENTAL OPINION ON REHEARING

The Appellees’ Petition for Rehearing is denied. Ordinarily the Court need not explain the denial of a rehearing nor is it necessary that each point raised by counsel be discussed. But a further comment is in order in this case.

The Associate District Judge wrote the Court expressing the view that the case was not tried by stipulation. This is, of course, correct, but our opinion was not intended to suggest the contrary. After a partial hearing before one judge, a second judge decided the case on the record and agreed facts although no formal stipulation was filed. On the record, however, the decision did not involve seriously contested fact questions but rather the legal interpretation of facts. This led the Court to suggest that the case was “decided” (not tried) on stipulated facts. The entire record on appeal was fully considered. Remand was ordered in case there had been later acts of part performance which the parties excusably had not addressed at trial.

Appellees argue that the Court overlooks Shaffer v. Turner, 43 Okl. 744, 144 P. 366 (1914) cited in its brief. That case does contain broad language to the effect that “[ejven if defendant had received no conveyance of any kind, he, having gone into possession, claiming title, and having paid the purchase price, his grantor had no title which she could convey to plaintiff as against defendant . . ." But in Shaf-ter the quoted language is clearly dicta since the defendant had, in fact, received an unrecorded deed prior to plaintiff’s deed. So the contest in Shaffer was between an unrecorded conveyance of a legal title and a subsequent recorded conveyance of a legal title. Indeed, Shaffer has been explained by the Supreme Court as involving a judgment “based on the verdict of a jury which found that the plaintiff therein had actual knowledge of the defendant’s claim beyond the lease showed by the record.” Schlegel v. Kinzie, 158 Okl. 93, 12 P.2d 223 (1932). Again, Jones v. Sharp, 183 Okl. 22, 79 P.2d 585 (1938) involved a contest between a prior unrecorded deed in favor of a lessee in possession and a subsequent recorded deed. And in Wilkinson v. Stone, 82 Okl. 296, 200 P. 196 (1921) the contest was between a prior unrecorded lease by the lessor of a lessee in possession and a subsequent recorded lease. In those cases the unrecorded conveyance had nevertheless conveyed the grantor’s title. Here we are asked to hold that the first purchasers were entitled to specific performance of an oral contract by way of a court-ordered conveyance. Not being entitled to this under the past performance doctrine title remained in the grantor.

The same language has been quoted in McCormick v. Stonebraker, 133 Okl. 34, 270 P. 1098 (1928). There the Court dealt with the effect of a contract not signed by all grantors. The case involved the application of Arkansas law since it involved land in the Indian Territory under Arkansas law. The Court did cite Shaffer including the above-quoted language. But in McCormick the Court relied on Arkansas law to the effect that possession, past payment and permanent improvements under an oral contract was sufficient past performance to take the case out of the Statute of Frauds. See McCormick at 1101. In that factual context, the quotation of dicta from Shaffer added nothing to the rationale and constituted dicta there as well.

We find this case law distinguishable and consistent with our opinion. The issue was not whether the subsequent purchasers took with notice. They clearly did. The issue is what was the prior possession notice of. The interest of the first purchasers was limited to their equitable right to compel the grantor to specifically convey title as a result of the oral transaction. Under the applicable law, including cases cited herein, an equitable title to specific performance under an oral contract to convey real property will only be ordered where there has been such part performance as described in our opinion in pursuance of the oral agreement. Only when the part performance is in reliance on the oral agreement is there a need for equity to intervene.

Petition for Rehearing is Denied.

All Judges concur.