2007-023, L. HAMLIN GREENE v. ROBERT J. MCLEOD & a.

The petitioner, L. Hamlin Greene, appeals the order of the

and orally), for the respondents. Patrick Wood Law Office, PLLC, of Laconia (Patrick H. Wood on the brief

and orally), for the petitioner. to press. Errors may be reported by E-mail at the following address: Greene Law Group, P.L.L.C., of Bedford (Arthur G. Greene on the brief

editorial errors in order that corrections may be made before the opinion goes No. 2007-023 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Belknap Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as the petitioner has made no such request.” p. 2 record evidence supporting the availability of any type of ‘restitution’ because property before Mr. McLeod moved to Florida in 1975”; and (2) “there is no the subject of this dispute.

McLeod agreed to split equally the cost of property taxes assessed on the Since 1975, the petitioner has paid all of the property taxes on the land that is responded on January 10, 2008, finding that: (1) the petitioner “and Robert W. petitioner. The petitioner, however, neither completed nor recorded the deeds. are any avenues of restitution available to the petitioner. The trial court signed with the intent to convey his share of the remaining land to the prior to the oral transfer of McLeod's interest in 1975; and (2) whether there one-half share of the property to the petitioner was barred by the statute of McLeod delivered two blank warranty deeds to the petitioner, which McLeod McLeod with respect to the payment of property taxes assessed on the property relevant facts when it ruled that: (1) the conveyance of McLeod’s undivided questions: (1) whether there were any agreements between the petitioner and findings. Rather, he asserts that the trial court misapplied the law to the On appeal, the petitioner does not challenge the trial court’s factual

her estate, contain any reference to property located in New Hampshire. signed a written contract memorializing their agreement. A few years later, Pasco County, Florida, and that neither her will, nor the probate records for paid McLeod $5,000 for his share; however, the petitioner and McLeod never The respondents also acknowledge that Mary McLeod’s estate was probated in the trial court on December 18, 2007, to make findings on the following two purchased by the petitioner, McLeod and Nelson. The petitioner agreed and note that McLeod’s will was filed in the circuit court in Pasco County, Florida. In an effort to clarify ambiguities in the record, we remanded the case to tracts of land, which were the only parcels left from the larger tract originally appeal followed. brought this petition to quiet title. The trial court denied the petition, and this the petitioner. The respondents declined the request, and the petitioner quitclaim deed confirming the sale of McLeod’s share of the remaining land to In 2004, the petitioner contacted the respondents in an effort to obtain a

survived by their children, the respondents. In their brief, the respondents time, McLeod asked the petitioner to buy out his interest in the two remaining McLeod died in 1988 and his wife, Mary, died in 1997. The McLeods are

In 1975, McLeod moved to Florida. The trial court found that, at that

in common. Sales continued until only two lots remained unsold. petitioner and McLeod agreed and took title to the remaining parcels as tenants this issue was, therefore, correct. p. 3 transaction or describe the real estate in question. The trial court’s ruling on They did not indicate the purchase price, the identities of both parties to the

transactions.” 3

blank deeds were insufficient as a matter of law to satisfy the statute of frauds. Inc. v. Groveton, 122 N.H. 101, 103 (1982). circumvent the purpose of the Statute of Frauds.” Badr Export and Import, estate contract, to allow parol evidence to supply these essential terms “would satisfied. as here, the only writings fail to contain any of the essential terms of the real of the property to him. He asserts that the statute of frauds was, in fact, admissible to supply the missing terms of the contract, he is mistaken. Where, To the extent that the petitioner asserts that parol evidence was

Its purpose is to “promote certainty and to protect frauds and perjuries in land charged, or by some person authorized by him in writing.” RSA 506:1 (1997). some memorandum thereof, is in writing and signed by the party to be Here, the only “writings” were two blank deeds, signed by McLeod. These

160 (1971). of the real estate in question. Id.; see Cunningham v. Singer, 111 N.H. 159, terms include: the purchase price, the identity of the parties, and a description statute of frauds barred the conveyance of McLeod’s undivided one-half share terms of the contract.” Lapierre v. Cabral, 122 N.H. 301, 305 (1982). These (1977). To satisfy the statute of frauds, “the writing must express the essential

Weale v. Massachusetts Gen. Housing Corp., 117 N.H. 428, 431 review the matter independently.

contract for the sale of land unless the agreement upon which it is brought, or The statute of frauds provides: “No action shall be maintained upon a

The petitioner first argues that the trial court erred when it ruled that the as against all other parties whose rights may be affected by the court’s decree.”

(2003). If, however, the court misapplies the law to its factual findings, we unless it is clearly erroneous. Cadle Co. v. Bourgeois, 149 N.H. 410, 415 will not overturn the trial court’s ruling on a mixed question of fact and law Riverwood Commercial Prop’s v. Cole, 134 N.H. 487, 490 (1991). Moreover, we unless it is erroneous as a matter of law or unsupported by the evidence. and the petition so alleged.” Id. We will uphold the trial court’s determination duly recorded interest in the property, unless those parties claimed no interest judgment quieting title to disputed property “in the absence of parties with a Sorenson v. Wilson, 124 N.H. 751, 758 (1984). A trial court may not render

In an action to quiet title, the burden “is on each party to prove good title

frauds; and (3) a constructive trust is not warranted. frauds; (2) equitable considerations do not favor overriding the statute of prevent the terms of a formal statute from doing grave injustice.” 4 C. Brown,

p. 4 present.” 4 facts, such as fraud, part performance or other equitable considerations, are the law seeks to alleviate the harshness of the statute when some operating Corbin on Contracts § 18.6, at 512 (rev. ed. 1997). It effectively withdraws

“[T]he ‘part performance’ doctrine is a judicial device [intended] to

part performance therefore applies. See id. We agree. on the property for over thirty years. He asserts that, inter alia, the doctrine of because he has paid both consideration for the conveyance and all of the taxes statute [here] would result in unjust enrichment to the seller or fraud[,]” id.,

Id. (citation omitted). The petitioner contends that “enforc[ing] the

produce frustration on the one hand, and unethical conduct on the other[,] . . . See Weale, 117 N.H. at 431. Because “strict enforcement of the statute can equitable considerations militate against application of the statute of frauds. The petitioner next argues that the trial court erred by failing to find that beginning. feet to the brook; and then in a Southwesterly direction to point of insufficient indicia of the agreement between the parties to satisfy the statute. pit; then in a Northerly direction and at right angle, for about 500 be delivered and does not specify the purchase price. They are simply blank. Each deed fails to identify either party, does not specify any property to By contrast, in the instant case, the warranty deeds were completely

under the statute of frauds. Id. at 533-34. that the trial court erred when it ruled that the agreement was unenforceable Jesseman, 106 N.H. at 530. We ruled that this description was sufficient and

the writing referred. did not err by relying upon extrinsic evidence to specify the property to which

300 feet from the Westerly point near the beach to an open sand N. H. . . . a parcel of land on the Harris Shore Road approximately [the] property at the intersection of Route 11 and 11B, Gilford,

as: that identified the parties and the sale price and described the land to be sold Similarly, in Jesseman, both parties to the transaction signed a writing

We held that, to the extent that this description was insufficient, the trial court belonging to Mrs. Anna Singer . . . on Lewis Hill Bethlehem, N.H.” Id. at 160. sold as “house with contents and one acre of land . . . first house on the left price. Cunningham, 111 N.H. at 1 p. 5 59-60. It also described the property to be Cunningham, the writing identified the parties to the transaction and the sale the writings contained at least some of the essential terms of the agreement. In Jesseman v. Aurelio, 106 N.H. 529, 532 (1965), is misplaced. In both cases, The petitioner’s reliance upon Cunningham, 111 N.H. at 160, and existing factors.” 4 C. Brown, 5 may be compensated by the unusual strength and character of the other the weakness or absence of some one factor on which emphasis is often placed

contract. Id. purchase price and the taxes pursuant to, and in reliance upon, the McLeod years of taxes, is sufficient for part performance. The petitioner paid both the payment of the purchase price, in conjunction with the payment of over thirty After considering the equities involved in this case, we hold that the

must be considered is “the sum total of factors, as they are found to exist, and 1926); Bradley v. Loveday, 119 A. 147, 149 (Conn. 1922). Ultimately, what disputed property, see id.; McKenzie v. Rumph, 286 S.W. 1022, 1023 (Ark. Jolley v. Clay, 646 P.2d 413, 419 (Idaho 1982), or takes possession of the see Sawin v. Carr, 114 N.H. 462, 466-67 (1974), pays the property taxes, cf. such as where the purchaser makes improvements to the disputed property, other ground.” 4 C. Brown, sufficient where additional factors make it equitable to enforce the contract, evidential of the existence of a contract and not readily explainable on any see Lemire v. Haley, 91 N.H. 3 p. 5 57, 358-59 (1941), such payment can become defendant to hide behind the statute”; and (3) “one that is in some degree an oral contract may be insufficient in-and-of-itself to invoke part performance, remedy of restitution is not reasonably adequate, making it very unjust for the taxes on the property. While payment of monetary amounts in consideration of purchase price in 1975, and thereafter took it upon himself to pay all of the In this case, the trial court found that the petitioner paid the $5,000

2004-789, 1 p. 5 53 N.H. 332, 334 (2006). 20, 23 (Idaho 2000), and is therefore subject to de novo review. In re Juvenile Richard, 900 A.2d 1170, 1174 (R.I. 2006); see also Simons v. Simons, 134 P.3d acts suffice to constitute part performance is a question of law,” unjust injury and loss,” Richard v. supra § 18.6, at 512. Whether or not “particular

that the defendant has already repudiated the contract”; (2) “such that the pursuance of the contract and in reasonable reliance thereon, without notice purchaser. Specifically, we must look to whether the acts are: (1) “in consider three factors in analyzing the sufficiency of the acts performed by the To determine whether the part performance doctrine applies, we must

pursuance of the contract, so far to alter his or her position as to incur an supra § 311, where the purchaser “has proceeded, either in performance or frequently applied to oral contracts for the sale of real estate,” 73 Am. Jur. 2d agreement,” Warren v. Dodge, 83 N.H. 47, p. 5 51 (1927). The doctrine “is or irreparable injury on the purchaser who has performed his part of the of Frauds § 311 (2001), when application of the statute would result in “fraud “contract[s] from the operation of the statute of frauds,” 73 Am. Jur. 2d Statute p. 6 6 C. Brown, What is relevant, therefore, is not just that the petitioner paid all of the taxes, in paying . . . taxes . . . .”); see also Gage v. Gage, 66 N.H. 282, 296 (1890). common may recover from another his proportionate share of money expended application of the part performance doctrine. contrary. Howland v. Stowe, 194 N.E. 888, 891 (Mass. 1935) (“One tenant in petitioner has any adequate avenues of restitution, this factor supports tenants for their proportionate share of the burden, absent an agreement to the (citation omitted)). Because the record does not demonstrate that the the entirety of a tax bill has an automatic claim for contribution from his cotax bill on any commonly-owned property. But a tenant in common who pays ground. See id. Admittedly, each tenant in common is obligated for the entire property[,]” his payment of all of the taxes was readily explainable on that holding that because the petitioner “already owned a one-half interest in the

supra § 18. p. 6 6, at 512. We disagree with the trial court’s implicit

the existence of a contract and not readily explainable on any other ground.” 4 The petitioner’s multiple tax payments are “in some degree evidential of

the availability of restitution is a question of law,

[section 733.710] by showing . . . fraud or estoppel or insufficiency of notice” So. 2d 1143, 115 p. 6 6 (Fla. 2000) (explaining how a “claimant cannot avoid those in possession of personalty”); see also May v. Illinois Nat. Ins. Co., 771 (explaining how section 733.710 “bar[s] all liens not mortgages or not held by for an interest in land); Gilpen v. Bower, 12 So. 2d 884, 884 (Fla. 1943) 809 So. 2d 78, 80 (Fla. Dist. Ct. App. 2002) (barring a claim against a decedent more than two years have elapsed since McLeod’s death. See Dobal v. Perez, expenditures from McLeod’s estate, or the beneficiaries of that estate, because (West 2006). The petitioner is therefore unable to recover any of his offer a legal ground upon which the petitioner could actually recover. Because letters of administration have been issued . . . .” Fla. Stat. Ann. § 733.710(1) Moreover, when questioned on this issue at oral argument, neither party could be liable for any claim or cause of action against the decedent, whether or not petitioner would be entitled to recover the purchase price of the property. decedent’s estate, the personal representative, if any, nor the beneficiaries shall argument acknowledged that, taking the facts as found by the trial court, the provision of the code, [two] years after the death of a person, neither the enrichment to the seller”). Notwithstanding that finding, the respondent at oral code contains a non-claim statute that provides: “Notwithstanding any other McLeod died in 1988, a resident of the state of Florida. Florida’s probate type of restitution.” parties have had an opportunity to address it, we proceed to decide the issue. restitution “are rules of substantive law, not rules of court procedure”), and the Contracts § 1102, at 3 (rev. ed. 2002) (explaining that the rules governing

part performance applies when “enforc[ing] the statute would result in unjust

on remand found “there is no record evidence supporting the availability of any With regard to restitution of the petitioner's expenditures, the trial court p. 7 7

prevent fraud and injustice, not to promote it. contract outside the statute of frauds. The statute of frauds is intended to taxes on the property for over thirty years, equity compels taking the oral BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred. agreement, and that the petitioner accepted responsibility for all of the property

arguments. that the trial court erred, we need not address the remainder of the petitioner’s withdraws this oral contract from the statute of frauds. Having so determined injustice for the petitioner, we conclude that the doctrine of part performance Because a refusal to enforce the oral contract in this case would result in

agreement, that the petitioner paid the purchase price agreed to by that Where, as here, the trial court finds that there was in fact an oral

performance to remove th[e] case from the [s]tatute[.]” Id. at 46 p. 7 7. substantial improvements made [by the petitioners] were sufficient part finding that it would be inequitable to apply the statute of frauds because “the arranged to sell the property to another. Id. On appeal, we upheld a master’s and expended $4,200 in labor and materials repairing the house, the owner at 464. After the petitioners took possession, made payments for three years, occupy, repair and, ultimately, purchase a dilapidated house. Sawin, 114 N.H. the children’s agreement to work, unpaid, on the same property. Similarly, in Sawin, the petitioners had entered into an oral agreement to

compensated in quantum meruit. Id. at 1 p. 7 76-77. the widow’s assertion that the children could have been adequately the statute of frauds and granted specific performance to the children, despite oral agreement, is unexplainable on other grounds. reliance upon the agreement was sufficient to withdraw the oral contract from that the petitioner and McLeod shared the tax burden equally prior to the 1975 objected. Id. On appeal, we held that the children’s years of unpaid work in death, his children sought to enforce the oral contract, and the decedent’s wife as joint tenants with the right of survivorship. Id. at 175. After the decedent’s decedent devised his title and interest in the motel to himself and his new wife Tsiatsios, 140 N.H. 173, 174 (1995). Subsequent to the agreement, the

an oral promise to bequeath a farm and motel to his four children in return for with our prior cases. For instance, in Tsiatsios v. Tsiatsios, a decedent made Application of the part performance doctrine in this case is also in accord

contribution. This forbearance, considered in light of the trial court's finding but rather that he did so for thirty years without exercising his right to