Hunt v. Hayt

Rising, O. The errors assigned are based upon the ruling of the court on the demurrer, and upon the action of the court in imposing costs upon the defendant upon overruling his demurrer. The argument of counsel for appellant, upon the first ground of the demurrer, is that the statement of facts in the complaint shows the alleged contract to be within the statute of frauds, and that the action was not brought within the time limited by statute, and that each of these objections is fatal on demurrer, upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The objection that the action is barred by the statute is not raised by the demurrer. This defense is in the nature of a special privilege, and must be pleaded specially, whether the pleading be by demurrer or answer. Hexter v. Clifford, 5 Colo. 168-173. It does not appear upon the face of the complaint that the proposition made by Hunt to Rupe was not in writing, and, therefore, as to the allegations relating to the transactions between Hunt and A. O. Rupe and Wilhelmine F. Rupe, the complaint is sufficient. The question should have been raised by answer, if raised at all. Tucker v. Edwards, 7 Colo. 209;. Bliss, Code Pl. 312, and cases cited. But, even if it appeared upon the face of the complaint that the proposition was not in writing, then the averments of the complaint relating to the transaction between Hunt and Wilhelmine F. Rupe, showing an acceptance of and compliance with the terms of the proposition made by Hunt to her, are sufficient to bring the case within the provisions of section 1519 of the General Statutes, which provides that “nothing contained in chapter 43 of ‘ Frauds and Perjuries ’ shall be construed to abridge the powers of courts of equity to.compel the specific performance of agreements, in cases of part performance of such agreements.” The complaint alleges, not only a part performance, but a full and complete performance, by Wilhelmine F. Rupe, of all the conditions the perform [282] anee of which was required of. her by the proposition made by Hunt, to entitle her to a deed to the premises so improved by her, and also shows an attempted performance of said agreement on the part of said Hunt. Such performance of a parol agreement for the conveyance of land is sufficient to authorize courts of equity to compel specific performance of the agreement. The most important acts which constitute a sufficient part performance to authorize courts of equity to decree specific performance are actual possession, and the making of permanent and valuable improvements. Pom. Eq. Jur. § 1409; Story, Eq. Jur. § 761; Davenport v. Mason, 15 Mass. 92; Freeman v. Freeman, 43 N. Y. 34; Laird v. Allen, 82 Ill. 43; Jamison v. Dimock, 95 Pa. St. 52; Lamb v. Hinman, 46 Mich. 112; 6 N. W. Rep. 675, and 8 N. W. Rep. 709; Littlefield v. Littlefield, 51 Wis. 25; 7 N. W. Rep. 773. By virtue of the possession taken of the premises, and the improvements placed thereon by Wilhelmine E. Rupe under the proposition made by Hunt, and in performance of the conditions contained in said proposition, Mrs. Rupe became the equitable owner of said premises. Pom. Eq. Jur. § 368. Such equitable interest may be assigned by the vendee or party who stands in the position analogous to that of the vendee, and the assignee may maintain an action to compel a specific performance of the contract. Pom. Spec. Perf. § 487; Wat. Spec. Perf. § 68; House v. Dexter, 9 Mich. 246. The quitclaim deed from Mrs. Rupe to the plaintiff conveyed by assignment the equitable right of Mrs. Rupe in the premises, and all her rights under the contract with Hunt. Miller v. Whittier, 32 Me. 203; Currier v. Howard, 14 Gray, 511; Bradbury v. Davis, 5 Colo. 265, 269; Fitzhugh v. Smith, 62 Ill. 486. In the case last cited it held that the effect of a deed is made to depend rather upon the intention of the parties than upon the form of the deed. It must be assumed upon this appeal that the allega [283] tions of the complaint necessary to authorize the decree entered were sustained by proofs upon the hearing. The complaint alleges an agreement bjr Hunt to convey to Wilhelmine F. Eupe certain definitely described premises, upon condition that she make certain improvements on said premises; alleges the full and complete performance of such condition by Mrs. Eupe; alleges that Mrs. Eupe conveyed all her interest in said premises to the plaintiff before the bringing of this action; alleges that defendant has not conveyed said premises to Mrs. Eupe, nor to the plaintiff, although requested so to do by Mrs. Eupe before her conveyance to the plaintiff, and by the plaintiff since such conveyance to her. These allegations constitute a cause of action against the defendant, and are sufficient to sustain the decree entered. From a careful examination of the complaint, we come to the conclusion that the second ground of demurrer is not well taken. Gilpin Co. v. Drake, 8 Colo. 586, 591. The objection to the action of the court in imposing $5 costs against defendant upon overruling his demurrer is not well taken. The payment of this sum by defendant was adjudged under the provisions of section 57 of the code. The validity of the statute authorizing this action of the court is questioned by counsel for appellant. The validity of the statute was sustained in Chivington v. Colorado Springs Co. 9 Colo. 597. The judgment should be affirmed. We concur: Macon, C.; Stalloup, 0. Per Curiam. For the reasons assigned in the foregoing opinion the judgment of the district court is affirmed. Affirmed.