(dissenting). I regret having to dissent in this case, but I think the majority opinion wholly disregards the statute of frauds of this state in that it makes title to real estate rest on oral testimony alone, where the facts do not justify it.
Our statute of frauds was first shown in the statutes of Oklahoma Territory in 1890, and was adopted from the Laws of Dakota Territory of 1887, which was undoubtedly taken from Lord Tenterden’s Act, §§6 and 7, Statute 9 George IV, c. 14. Its purpose was “to prevent fraud and perjury in the enforcement of obligations depending for their evidence on the unassisted memory of witnesses, by requiring certain enumerated contracts and transactions to be evidenced by writing signed by the party to be charged.” 37 C.J.S., Frauds, Statute of, §1.
The counsel for the minors in this case asked their mother, when she was on the stand as the only witness for the plaintiffs, a leading question to this effect:
“Q. Did you agree not to ask for any alimony and did you agree to relinquish all your right in that forty acres if he would deed this ten acres to you? A. That’s right.”
The court held that this question was leading. Counsel then asked her to state what her father-in-law had said to her in regard to the property settlement and divorce, and what she actually agreed with him, and she gave this answer:
“A. I was to have most of the household articles, the furniture and other things, and this ten acres for the children if I would let Glen have all the farming machinery and the car and the equity in this forty acres.”
*64But on cross-examination, when she was pinned down as to this particular conversation, she testified as follows:
“Q. What did he say? How did he say it? A. He said, ‘I will fix this place for the children because you will probably remarry some day’, and at that time was when he said he didn’t care to furnish another man a home.
“Q. Was there anything else said? A. He said we could work out the property settlement between Glen and I as to the other things.
“Q. He said you and Glen could work out the property settlement? A. That’s right.
“Q. Well, was there any condition put on your working out a property settlement with Glen? A. No.”
The evidence here at no place shows a clear-cut agreement on the part of Lee Stinchcomb, the grandfather of the minors, that he would convey a particular ten acres at a particular time to the children. In my opinion, the best that can be said is that he agreed to “fix it” so the children would have a home, with which agreement he fully complied.
It is just such situations as this that necessitate a statute of frauds. Here was an old man who wanted to help his grandchildren. He said that even though his son did not do it, he would “fix it” so that the children should always have a home; but he did not want to give that home to his daughter-in-law, because she might marry another man. The mother of the children brought this suit on their behalf, claiming that he told her he would give them a particular ten-acre tract. The testimony on this is exceedingly weak, and is contradicted in every particular by the testimony of the defendant Lee Stinchcomb.
We have held in this state, in Webster v. Neal, 119 Okla. 93, 248 P. 596, that a decree for specific performance will not be granted unless the evidence of the making of the contract is clear and convincing, and unless it terms, the consideration on which it was founded, and the time of execution are clearly established. That case further held that where an action for specific performance of a parol contract for the sale of certain interest in land is brought, and where the existence of such contract is denied, its existence must be established by clear and convincing testimony, and a mere preponderance is not sufficient; and that specific performance of a parol contract for the sale of land upon the ground of part performance will not be decreed unless the facts alleged to be in part performance are established by clear and convincing testimony. The exception made to the provision that oral contracts for the sale of land violate the statute of frauds is chiefly concerned with contracts between vendor and vendee of land, where the vendee goes into possession of the land and constructs certain improvements, which may take the agreement from under the statute of frauds; but in this case the children and their mother were in possession of the land, and there was no change in the possession whatsoever. The mother went onto the land in 1933, when she was first married, and continued to live there. In the settlement of property rights in the divorce action, she never asked that any provision be made in regard to this land, other than the provision in the property-settlement agreement that she and the children were to occupy the house rent free, and this was called to the court’s attention in her presence, and she at no time made any claim that the ownership of the entire ten acres was to vest in her minor children. She was allowed a specified sum for child support at the time of the divorce. It developed after the decree that this was not sufficient to maintain the children, but she went to her father-in-law and told him that if the house could be remodeled and modernized so that she could rent out part of it for a substantial rental, she would not need to have an additional *65sum allowed for Child support. ’ She testified that she put about $200 into these improvements and the defendant, her father-in-law, about $800. He testified that he spent $950 on these improvements. She never paid one cent of this sum. These improvements were made in order to obtain a rental income from the property, and did not constitute an assertion in any way of a claim of ownership of the ten acres, or any part thereof, by her for and on behalf of her children.
In Johnston v. Baldock, 83 Okla. 285, 201 P. 654, it was held that a prior possession taken under a lease and continued, without a surrender of the premises and a re-entry under the contract to purchase, is wholly insufficient and of no avail to take the oral contract out of the statute of frauds, and that the possession necessary to take an oral contract for the sale of real estate out of the statute of frauds must be clearly shown by the evidence to refer to and result from, and to have been taken and entered into by virtue of, the contract. The possession that the plaintiff had here for her children was the same possession that she had before the alleged contract was made, and certainly this possession was not sufficient to take the alleged oral contract out of the statute of frauds. This case was followed in Cannon v. Unruh, 84 Okla. 36, 202 P. 182.
I cannot see that the expenditure of the money by the mother of the children could by any stretch of the imagination be asserting any claim for the children, other than what the grandfather had indicated he would do for them. The simple fact that she improved the house does not indicate that she was to get the ten acres. The grandfather had said he would “fix it” so the children would have a home. He did not say he would “fix it” so they would have a rental income in addition to a home. This was a thing that the mother worked out with the grandfather after the divorce decree. There is nothing in that transaction to indicate that- this imjp'fovement wás made in pursuance of the alleged oral agreement to convey the land to the children. The alleged agreement was between the mother and the father-in-law for the benefit of the children, but she has done nothing to so alter her position that a restoration to her former position is impracticable or impossible. She should have been just as much interested in keeping down any scandal, for the protection of her children, as was their grandfather, and if any action was taken by her in the divorce on the strength of statements by her father-in-law, it would be upon the statement that the children would have a home — which they have.
I submit that the conduct of the grandfather in this case in claiming his rights under the statute of frauds would not inflict an unjust and un-conscientious injury or loss upon his two grandchildren. This land was his, and he had a right to dispose of it as he saw fit. He has claimed at all times that he never did make any promises to the mother of the children that he would give the children ten acres. I submit that the evidence in this case shows that Harris A. Arthur, 36 Okla. 33, 127 P. 695, does not sustain the position of the plaintiff, as she has not brought herself under any of the requirements of that case. This is simply a case where the statute of frauds applies, and I can see nothing that would justify the trial court in ignoring this wholesome legislation,.
I dissent.