36-105 Contracts for lease or sale of lands; when void. - Nebraska Statutes

36-105. Contracts for lease or sale of lands; when void.Every contract for the leasing for a longer period than one year, or for the sale of any lands, shall be void unless the contract or some note or memorandum thereof be in writing and signed by the party by whom the lease or sale is to be made. SourceR.S.1866, c. 43, § 64, p. 293; R.S.1913, § 2625; C.S.1922, § 2453; C.S.1929, § 36-105; R.S.1943, § 36-105.Annotations1. Signing2. Description of parties3. Authority of agent to sign4. Sufficiency of writing or description5. Parol lease6. Memorandum7. Performance of contract8. Miscellaneous1. SigningA typed or printed name on a document is a signing sufficient to satisfy the statute of frauds, provided the name is recognized as his signature by the party sought to be charged. Department of Banking, Receiver v. Wilken, 217 Neb. 796, 352 N.W.2d 145 (1984).A telegram to which a seller's name has been affixed may be considered as having been signed by him within the meaning of the statute of frauds. Hansen v. Hill, 215 Neb. 573, 340 N.W.2d 8 (1983).To be enforceable, a contract for the sale of real estate or some memorandum thereof must be in writing and signed by the seller, and minds of parties must meet. Horn v. Stuckey, 146 Neb. 625, 20 N.W.2d 692 (1945).In an agreement for sale in a separate instrument, not only must vendor sign, but the name or description of the vendee must appear. Barkhurst v. Nevins, 106 Neb. 33, 182 N.W. 563 (1921).Vendor only is required to sign contract or memorandum. Iske v. Iske, 95 Neb. 603, 146 N.W. 918 (1914); Ballou v. Sherwood, 32 Neb. 666, 49 N.W. 790 (1891); Robinson v. Cheney, 17 Neb. 673, 24 N.W. 378 (1885).A contract for sale of real estate is not binding upon vendor until it is signed and delivered to vendee. Smith v. Severn, 93 Neb. 148, 139 N.W. 858 (1913).2. Description of partiesMemorandum, neither naming nor describing parties so they can be identified, is not sufficient. Frahm v. Metcalf, 75 Neb. 241, 106 N.W. 227 (1905).Memorandum containing names of parties, description, price and reference to ten year terms of seller is sufficient. McWilliams v. Lawless, 15 Neb. 131, 17 N.W. 349 (1883).3. Authority of agent to signEmployment contract and if the parties intend that the agent shall have authority to sign a sales contract it should be expressly and clearly stated in writing. Brezina v. Hill, 195 Neb. 481, 238 N.W.2d 903 (1976).Agent need not sign writing authorizing him to sign contract as signature of principal is all that is necessary. Seberger v. Wood, 106 Neb. 272, 183 N.W. 363 (1921).Letter merely stating terms is no authority. Ross v. Craven, 84 Neb. 520, 121 N.W. 451 (1909).Authority may be given by letter written by owner. Harrison v. Rice, 78 Neb. 654, 111 N.W. 594 (1907).Agent must be authorized in writing. O'Shea v. Rice, 49 Neb. 893, 69 N.W. 308 (1896).4. Sufficiency of writing or descriptionThe memorandum required by this section must contain the essential terms of the contract, lacking which specific performance will not be decreed. Reifenrath v. Hansen, 190 Neb. 58, 206 N.W.2d 42 (1973).This section and applicable case law do not require terms of sale be set forth in listing contract with broker. Wisnieski v. Coufal, 188 Neb. 200, 195 N.W.2d 750 (1972).This section clearly contemplates that the contract, note, or memorandum thereof in writing shall contain within itself all of the essential elements which go to make up a contract and when essential elements of the contract are lacking the contract must fail because essential elements cannot be supplied by parol testimony. Kubicek v. Kubicek, 186 Neb. 802, 186 N.W.2d 923 (1971).Correspondence between the parties can satisfy requirements of statute. Griggs v. Oak, 164 Neb. 296, 82 N.W.2d 410 (1957).Memorandum must be signed by the vendor, and the name or description of the vendee must also appear. Campbell v. Kewanee Finance Co., 133 Neb. 887, 277 N.W. 593 (1938).Vendee's petition for specific performance of contract to sell realty was sufficient to disclose a sufficient note or memorandum, signed by vendor, to satisfy statute of frauds. Long v. Osborn, 119 Neb. 758, 230 N.W. 686 (1930).Written memorandum did not sufficiently describe land to take case out of operation of statute. Tate v. Barb, 112 Neb. 756, 200 N.W. 1002 (1924).Letter to agent describing land and terms, you may . . . close deal, is sufficient authority. Furse v. Lambert, 85 Neb. 739, 124 N.W. 146 (1910).Description must be sufficiently definite to identify land. North . . . feet of Lot 8, where vendor owned whole lot, is insufficient. McCarn v. London, 83 Neb. 201, 119 N.W. 251 (1909).Letter stating I still have northwest quarter section 20, township 22-5, and would sell for three thousand dollars cash, is sufficient authority. Weaver v. Snively, 73 Neb. 35, 102 N.W. 77 (1905).Description is not sufficient, which does not specify which quarter of a named section is being sold, and where vendor owned but one out of the four quarters. Ruzicka v. Hotovy, 72 Neb. 589, 101 N.W. 328 (1904).Authority to agent to sell need not state price. Rank v. Garvey, 66 Neb. 767, 92 N.W. 1025 (1902).Parol evidence is admissible to explain latent ambiguity in description, as where there are two additions of same name. Ballou v. Sherwood, 32 Neb. 666, 49 N.W. 790, 50 N.W. 1131 (1891).Description must be definite and not ambiguous. Barton v. Patrick, 20 Neb. 654, 31 N.W. 370 (1886).5. Parol leaseAn oral lease for only one year is void if entered into prior to the beginning of the term. Prigge v. Olson, 154 Neb. 131, 47 N.W.2d 344 (1951); Kofoid v. Lincoln Implement & Transfer Co., 80 Neb. 634, 114 N.W. 937 (1908); Thostesen v. Doxsee, 77 Neb. 536, 110 N.W. 319 (1906).A parol lease for three years is valid for one year. Osgood v. Shea, 86 Neb. 729, 126 N.W. 310 (1910).Where possession is taken under oral lease for two years, lessee becomes tenant for one year. Dewey & Stone v. Payne & Co., 19 Neb. 540, 26 N.W. 248 (1886).Lease signed but not witnessed or acknowledged is valid between parties. Weaver v. Coumbe, 15 Neb. 167, 17 N.W. 357 (1883).Lease for term exceeding one year is void; but if lessee enters, is valid for one year. Friedhoff & Co. v. Smith, 13 Neb. 5, 12 N.W. 820 (1882).Lease which may terminate within one year, as lease for life of another, is valid. McCormick v. Drummett, 9 Neb. 384, 2 N.W. 729 (1879).6. MemorandumIn order to satisfy the provisions of this section, a memorandum, in addition to being signed by the party to be charged or by his or her agent actually or apparently authorized to do so, must state with reasonable certainty (1) each party to the contract either by his or her own name, or by such a description as will serve to identify him or her, or by the name or description of his or her agent, (2) the land, goods or other subject matter to which the contract relates, and (3) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made. Pallas v. Black, 226 Neb. 728, 414 N.W.2d 805 (1987).A telegram may constitute a sufficient memorandum under the statute of frauds. Hansen v. Hill, 215 Neb. 573, 340 N.W.2d 8 (1983).The memorandum is not the contract but only written evidence of an oral contract, and if it contains the essential terms thereof parol evidence is admissible to show what land it refers to. David v. Tucker, 196 Neb. 575, 244 N.W.2d 197 (1976).Agreement for sale of land is void in absence of written memorandum signed by vendor. Krueger v. Callies, 190 Neb. 376, 208 N.W.2d 685 (1973).Where there was no contract, note or memorandum signed, and no part performance, oral contract for sale of land was unenforceable. Taylor v. Clark, 143 Neb. 563, 13 N.W.2d 621 (1944).Not only must vendor sign, but name or description of the vendee must appear. Barkhurst v. Nevins, 106 Neb. 33, 182 N.W. 563 (1921).Entire correspondence, including abstract accompanying and referred to in letter, were sufficient to constitute memorandum. Heenan & Finlen v. Parmele, 80 Neb. 514, 118 N.W. 324 (1908).Memorandum may consist of several letters, referring to same subject. Undelivered deed is insufficient, but may supply defects in description in another memorandum. Collyer v. Davis, 72 Neb. 887, 101 N.W. 1001 (1904).Memorandum need not state consideration or terms and conditions of payment. Ruzicka v. Hotovy, 72 Neb. 589, 101 N.W. 328 (1904).Memorandum showing names of parties, description of land, price, general terms, and signed by vendor is sufficient. Gardels v. Kloke, 36 Neb. 493, 54 N.W. 834 (1893).Memorandum may be proved by letters. Vindquest v. Perky, 16 Neb. 284, 20 N.W. 301 (1884).7. Performance of contractWhere right to recover depends upon the establishment of an interest in land, oral contract is unenforceable in absence of part performance. Anderson v. Anderson, 150 Neb. 879, 36 N.W.2d 287 (1949).Oral contract for sale of real estate, unaccompanied by any acts of part performance except payment of consideration, cannot be enforced. Baker v. Heavrin, 148 Neb. 766, 29 N.W.2d 375 (1947).Oral agreement for sale of lands is void and will not be enforced unless there has been part performance by the promisee which is solely referable to the contract. Herbstreith v. Walls, 147 Neb. 805, 25 N.W.2d 409 (1946).Where contract of sale is oral, and there has been no part performance on part of owner of land, no right accrues to purported purchaser. Williams v. Beckmark, 146 Neb. 814, 21 N.W.2d 745 (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).A subsequent oral contract, superseding or modifying one which the statute of frauds requires to be in writing, will be upheld, if executed. Lucas v. County Recorder of Cass County, 75 Neb. 351, 106 N.W. 217 (1905).Delivery of deed to appointed agent of vendee is sufficient compliance by vendor. Soward v. Moss, 59 Neb. 71, 80 N.W. 268 (1899).In action for money due for land conveyed, statute is no defense. Griffith v. Thompson, 50 Neb. 424, 69 N.W. 946 (1897).8. MiscellaneousAn alleged agreement to settle a quiet title action is subject to the statute of frauds. Omaha Nat. Bank v. Mullenax, 211 Neb. 830, 320 N.W.2d 755 (1982).An auction of real estate without reserve is within the statute of frauds. Benson v. Ruggles & Burtch v. Benson, 208 Neb. 330, 303 N.W.2d 496 (1981).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).A mere oral promise to bid in property at a tax foreclosure sale, and convey it to the owner upon being reimbursed, is a contract for the sale of land within this section. Smith v. Kinsey, 148 Neb. 786, 28 N.W.2d 588 (1947).A resulting trust arising from taking of title to school land lease in name of one person for benefit of another who paid the purchase price is not affected by the statute of frauds. Reetz v. Olson, 146 Neb. 621, 20 N.W.2d 687 (1945).A parol modification of an annuity agreement constituting a charge on real estate is valid, and complete performance of the agreement as modified will discharge the lien. Hylton v. Krueger, 138 Neb. 691, 294 N.W. 485 (1940).Agent for purchase of real estate, who purchases for himself will be considered in equity as holding property in trust for his principal, subject to reimbursement for his proper expenditures. Lamb v. Sandall, 135 Neb. 300, 281 N.W. 37 (1938).The defense of the statute is personal to the parties. Happ v. Ducey, 110 Neb. 429, 193 N.W. 918 (1923).Oral agreement of persons to furnish money and buy and sell land is not within statute. Greusel v. Payne, 107 Neb. 84, 185 N.W. 336 (1921).Sale and delivery of corporate stock, with oral agreement to repurchase, is not within statute. Griffin v. Bankers Realty Investment Co., 105 Neb. 419, 181 N.W. 169 (1920).Oral agreement granting defendants the right to occupy and use the lands during lifetime of their father at a certain annual rental, under the circumstances was not within the statute. Luther v. Luther, 103 Neb. 46, 170 N.W. 364 (1918).Parol agreement between mortgagor and mortgagee to give deed in satisfaction of mortgage is within statute. Montpelier Savings Bank & Trust Co. v. Follett, 68 Neb. 416, 94 N.W. 635 (1903).Defense of statute of frauds is personal to party to be charged, and privies. Dailey v. Kinsler, 35 Neb. 835, 53 N.W. 973 (1892).Assignments of contracts for sale of real estate in blank are void. Folsom v. McCague, 29 Neb. 124, 45 N.W. 269 (1890).Where an option to purchase is contained in a lease signed by the vendor, an oral acceptance signed by the vendee is sufficient. Smith v. Gibson, 25 Neb. 511, 41 N.W. 360 (1889).Parol agreement to reconvey to grantor is within statute. O'Brien v. Gaslin, 20 Neb. 347, 30 N.W. 274 (1886).