Miller v. Binshadler

The Circuit Court found that' on April 17, 1916, there was yet due and unpaid on the land sale contract for the 31 acres, $726.31,"and that finding is sustained by the evidence. There is no competent evidence tending to show that the contract for the sale of the 31 acres and the option on the 24-acre tract should be deemed and treated as one contract for the purchase and sale of the combined properties. Those transactions were evidenced by separate written instruments. The purchase price of the 31-acre tract was $2,200, and the option price for the other tract was $2,400. At the time the contract of sale was executed there was a payment of $800, and the instrument provided for the payment annually of $300 for four consecutive years and $659 to be paid within five years, each installment to draw interest from date. By its terms, William Binshadler covenanted to pay $2,200 for the 31 acres. Any payment on the 24-acre tract was at his option and entirely within his discretion. He did not agree to make any payment whatever on that property. Miller could enforce payment against Binshadler for the purchase price of the 31 acres, but could not insist *29upon payment for the 24 acres, because there was no agreement to pay, and no mutual obligation. From the nature of things, the two instruments could not be construed as one.

Again, for the first year the defendants took a verbal lease of the 24-acre farm for a crop rental of one third, and for the following years they had a written lease with an agreed cash rental. All payments on the purchase price were made on the 31-acre tract and nothing was paid on the 24 acres except the amount of the stipulated rental. Although it is true that the defendants have had possession of the latter realty, yet such holding was under the terms and conditions of the yearly leases and not by virtue of any contract of sale or purchase, either oral or written. The land sale contract expressly provided that they should have possession of the 31-acre tract so long as they complied with its terms. There is no such provision in the option on the other property.

In Roberts v. Templeton, 48 Or. 65 (80 Pac. 481, 3 L. R. A. (N. S.) 790, at page 810, of the notes in the last publication), numerous authorities are cited to the effect that a tenant in possession under a lease cannot claim, for the purpose of defeating the statute of frauds, that he is in possession under an oral contract to purchase. The rule is well stated in Cole v. Potts, 10 N. J. Eq. 67, where the court said:

“If a party relied on possession as part performance, he must show that he enjoyed that possession under the contract. If he had come in as a tenant, he must show by unequivocal proof that the tenancy had been abandoned, and that his possession as a tenant had been changed into that of a vendee under the specific contract he was seeking to enforce.”

In this case the vendee held as tenant, and failed to show a change of possession.

*30The defendants’ claim of a right to purchase the 24 acres after the expiration of the option on September 1, 1913, is founded upon oral testimony only, and even that is indefinite and uncertain. There is no testimony tending to show that the defendants were ever in possession of the 24-acre tract under a contract to purchase. Their holding of that land was as tenants . only.

The decree of the Circuit Court is affirmed.

Affirmed.