36-106. Contracts for lease or sale of lands; specific performance.

Nothing contained in sections 36-103 to 36-106 shall be construed to abridge the powers of a court of equity to compel the specific performance of agreements in cases of part performance.

Source

Annotations

1. Proof of contract

2. Part performance

3. Payment of consideration

4. Change of possession and improvements

5. Miscellaneous

1. Proof of contract

A party seeking specific performance of an oral contract for the sale of real estate upon the basis of past performance must prove, among other things, an oral contract, the terms of which are clear, satisfactory, and unequivocal. Sayer v. Bowley, 243 Neb. 801, 503 N.W.2d 166 (1993).

In order to establish that an oral contract falls within an exception to section 36-103, the statute of frauds for interest in land, the proponent of the contract must establish by clear, satisfactory, and unequivocal evidence the terms of the contract, that acts done in the performance thereof are referable solely to that contract, and that the acts performed are of such a nature that nonperformance of the contract by the other party would amount to a fraud upon the proponent. Johnson v. NM Farms Bartlett, 226 Neb. 680, 414 N.W.2d 256 (1987).

In order to satisfy the requirements of this section, the burden is upon the proponent to prove an oral contract, the terms of which are clear, satisfactory, and unequivocal, and that the acts done in performance are referable solely to the contract sought to be enforced, so that nonperformance by the other party would amount to a fraud upon him. Darsaklis v. Schildt, 218 Neb. 605, 358 N.W.2d 186 (1984).

Specific performance of an oral contract to transfer specific property in consideration of personal care of owner may be decreed by court. Peters v. Wilks, 151 Neb. 861, 39 N.W.2d 793 (1949).

Where party is claiming estate of deceased person under oral contract, evidence of contract and the terms thereof must be clear, satisfactory, and unequivocal. Lunkwitz v. Guffey, 150 Neb. 247, 34 N.W.2d 256 (1948).

Equity will grant specific performance of parol contract to convey real estate where contract is established by clear, convincing, and satisfactory evidence, and where it has been fully performed by one party and its nonfulfillment would amount to a fraud on the other party. Garner v. McCrea, 147 Neb. 541, 23 N.W.2d 731 (1946).

Oral contract with deceased person for devise of land must be clear, definite and unequivocal. Young v. Gillen, 108 Neb. 311, 187 N.W. 900 (1922); Poland v. O'Connor, 1 Neb. 50 (1871).

Where contract to devise to adopted child is clearly established and entirely performed on child's part, specific performance should be decreed. Evans v. Kelly, 104 Neb. 712, 178 N.W. 630 (1920); Kofka v. Rosicky, 41 Neb. 328, 59 N.W. 788 (1894).

If contract is definite and clearly proved and substantial performance is proved by clear and unequivocal evidence, it has the same force as if written. Parks v. Burney, 103 Neb. 572, 173 N.W. 478 (1919).

Proof must admit of no explanation without supposing contract to exist. Mancuso v. Rosso, 81 Neb. 786, 116 N.W. 679 (1908).

Evidence must be clear and satisfactory. Harrison v. Harrison, 80 Neb. 103, 113 N.W. 1042 (1907).

Acts must have been done with reference to contract. Lewis v. North, 62 Neb. 552, 87 N.W. 312 (1901).

Proof must be unaccountable except as done under existing contract, and terms must be clearly established. Using lot for storage is insufficient. Hunt v. Lipp, 30 Neb. 469, 46 N.W. 632 (1890).

Acts must unequivocally appear to relate to identical contract pleaded. Morgan v. Bergen, 3 Neb. 209 (1874).

2. Part performance

An oral agreement to make a will is unenforceable under this section but there is nothing contained in sections 36-101 to 36-106, R.R.S.1943, which should be construed to bridge the power of a court of equity to compel specific performance of agreements in cases of part performance. Rudolph v. Hartung, 202 Neb. 678, 277 N.W.2d 60 (1979).

Acts of part performance must relate solely to the oral contract to be enforced. Meyer v. Meyer, 180 Neb. 379, 142 N.W.2d 922 (1966).

Requirements of part performance restated. Anderson v. Anderson, 150 Neb. 879, 36 N.W.2d 287 (1949).

Part performance must be such as is referable solely to the contract sought to be enforced. Smith v. Kinsey, 148 Neb. 786, 28 N.W.2d 588 (1947).

Part payment of consideration, unaccompanied by other acts of part performance, is insufficient as the basis for a decree of specific performance. Baker v. Heavrin, 148 Neb. 766, 29 N.W.2d 375 (1947).

Where purchaser takes and retains possession and also pays a portion or all of the purchase price, such acts together may constitute part performance. Herbstreith v. Walls, 147 Neb. 805, 25 N.W.2d 409 (1946).

Acts constituting part performance must be such as are referable solely to the contract sought to be enforced. Caspers v. Frerichs, 146 Neb. 740, 21 N.W.2d 513 (1946).

Before specific performance of an oral contract to convey real estate will be decreed, the acts claimed to be in part performance themselves must unequivocally indicate the existence of the contract. Crnkovich v. Crnkovich, 144 Neb. 904, 15 N.W.2d 66 (1944).

An oral contract, partly performed, which the statute of frauds requires to be in writing, will be enforced by a court of equity. Campbell v. Kewanee Finance Co., 133 Neb. 887, 277 N.W. 593 (1938).

Where oral contract for reciprocal wills is followed by the execution thereof, reliance thereon by plaintiff is full performance and entitles him to specific performance against heirs. Brown v. Webster, 90 Neb. 591, 134 N.W. 185 (1912).

Parol license to construct irrigation ditch and dam on others' land, when acted upon and used for years, is irrevocable. Arterburn v. Beard, 86 Neb. 733, 126 N.W. 379 (1910).

Contract to devise to stepson on condition he remain at home and work until he becomes of age, clearly and satisfactorily proved and fully performed by him, can be specifically enforced. Hespin v. Wendeln, 85 Neb. 172, 122 N.W. 852 (1909).

Where plaintiff has fully performed, and contract is clearly proved, contract to devise, in consideration of son returning to live with father, is enforced. Harrison v. Harrison, 80 Neb. 103, 113 N.W. 1042 (1907).

Where there is full performance by vendee and part performance by vendor, including surrender of possession, contract can be enforced in action to quiet title. Morrison v. Gosnell, 76 Neb. 539, 107 N.W. 753 (1906).

Oral agreement to purchase land at sale, and hold same for mortgagor, was enforced. Dickson v. Stewart, 71 Neb. 424, 98 N.W. 1085 (1904).

Want of mutuality is no defense where party not bound has fully performed. Dickson v. Stewart, 71 Neb. 424, 98 N.W. 1085 (1904); Bigler v. Baker, 40 Neb. 325, 58 N.W. 1026 (1894).

Oral contract should be enforced where party cannot be restored to former situation. Teske v. Dittberner, 70 Neb. 544, 98 N.W. 57 (1903).

Oral agreement to devise, should be specifically enforced, where one party has fully performed and damages would be inadequate. Best v. Gralapp, 69 Neb. 811, 96 N.W. 641 (1903), aff'd on rehearing, 69 Neb. 815, 99 N.W. 837 (1903).

Continued possession of tenant or vendee is insufficient. Lewis v. North, 62 Neb. 552, 87 N.W. 312 (1901); Bradt v. Hartson, 4 Neb. Unof. 889, 96 N.W. 1008 (1903).

Acts of vendee in taking possession though probably insufficient as part performance, may be sufficient to sustain action for purchase price. Stephens v. Harding, 48 Neb. 659, 67 N.W. 746 (1896).

3. Payment of consideration

Payment of full purchase price is insufficient. Retention of lands under oral agreement to relinquish share in estate is not part performance. Riddell v. Riddell, 70 Neb. 472, 97 N.W. 609 (1903).

Where considerable portion of purchase money is paid, and vendee takes possession, oral agreement is not within statute. Lipp v. Hunt, 25 Neb. 91, 41 N.W. 143 (1888).

Partial payment of purchase price will not take case out of statute. Baker v. Wiswell, 17 Neb. 52, 22 N.W. 111 (1885); Poland v. O'Connor, 1 Neb. 50 (1871).

4. Change of possession and improvements

Continued possession by tenant is not part performance as possession is presumed to be held under tenancy and not under contract. Steger v. Kosch, 77 Neb. 147, 108 N.W. 165 (1906); Lewis v. North, 62 Neb. 552, 87 N.W. 312 (1901); Schields v. Horbach, 49 Neb. 262, 68 N.W. 524 (1896); Bigler v. Baker, 40 Neb. 325, 58 N.W. 1026 (1894).

Parol gift of land, where donee takes possession and makes valuable improvements, is valid. Merriman v. Merriman, 75 Neb. 222, 106 N.W. 174 (1905).

Possession and valuable improvements by vendee are sufficient as part performance. Coleridge Creamery Co. v. Jenkins, 66 Neb. 129, 92 N.W. 123 (1902).

Parol gift followed by possession and erection of valuable improvements by donee, should be upheld. Preponderance of evidence sufficient. Wylie v. Charlton, 43 Neb. 840, 62 N.W. 220 (1895).

Possession taken of lots, but used for storage, is insufficient. Hunt v. Lipp, 30 Neb. 469, 46 N.W. 632 (1890).

Where two parties enter into oral agreement to convey lots to a railroad to induce location of a depot, and one party conveys his lots, statute of frauds would be defense to action for specific performance. Harris v. Roberts, 12 Neb. 631, 12 N.W. 89 (1882).

Delivery of possession and full performance by vendee are sufficient. Hanlon v. Wilson, 10 Neb. 138, 4 N.W. 1031 (1880).

Possession must be open, visible and unequivocal, and improvements must have been induced by positive action or permission of vendor. Poland v. O'Connor, 1 Neb. 50 (1871).

Oral contract should not be enforced where there is no change in possession, as prior possession as tenant, is presumed to continue as such. Bradt v. Hartson, 4 Neb. Unof. 889, 96 N.W. 1008 (1903).

5. Miscellaneous

Specific performance may be had of an oral contract for the conveyance of a homestead. Riley v. Riley, 150 Neb. 176, 33 N.W.2d 525 (1948).

An action in equity to enforce an oral agreement to convey real estate is protected by statute. Hackbarth v. Hackbarth, 146 Neb. 919, 22 N.W.2d 184 (1946).

Section recognizes and continues practice of equity decreeing specific performance when contract partly is performed to prevent fraud and injustice. Includes contracts to devise. Cobb v. Macfarland, 87 Neb. 408, 127 N.W. 377 (1910).