Martin v. Brister - 37011 ( La. App. 2 Cir 07/23/03), 850 So. 2d 1106

Rule:

Generally, a transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated under oath. La. Civ. Code Ann. art. 1839. The term actual delivery means that the immovable which is the object of the verbal sale has in fact been transferred or placed into the possession of the buyer. A determination of whether actual delivery of an immovable has been made depends on the circumstances of each individual case. A sale is a contract whereby a person transfers ownership of a thing to another for a price in money. The thing, the price and the consent of the parties are requirements for the perfection of a sale. La. Civ. Code Ann. art. 2439.

Facts:

Plaintiff buyers, Tommy Martin and Brenda Martin, purchased a 2-acre tract of land from the defendant seller, John Brister, Jr., and executed a promissory note and mortgage for $ 70,000. Plaintiffs later approached the defendant about purchasing an additional 40-foot strip, the disputed property, adjacent to the 2-acre tract for use as a driveway. There was no written agreement regarding the sale of the disputed property. The plaintiffs issued a check for $ 76,466 as full payment on the promissory note; $ 70,000 for the balance on the promissory note, $ 6,000 for the disputed property, and $ 466 for 1 month's interest. The defendant accepted the payment, but did not deliver the cancelled note and mortgage to the plaintiffs. Approximately one year later, the plaintiffs’ attorney prepared a "Correction Credit Deed" to correct and amend the original property description and to include the additional 40-foot strip of land. Defendant refused to sign the correction deed and sent the plaintiffs’ attorney an alternative revised deed, which corrected the original instrument, but did not add the 40-foot lot to the property description. Subsequently, the plaintiffs filed a petition for damages against the defendant for his failure to execute an act of correction of the credit deed and to cancel the note and mortgage. The plaintiffs requested that the credit deed property description be corrected and amended and that defendant be ordered to convey to them the 40-foot strip of land adjacent to the property originally described. The trial court rendered judgment adjudicating title to the 40-foot strip of land to plaintiffs. The defendant appealed, arguing that the trial court erred in finding that there was an enforceable verbal contract between the parties. 

Issue:

Under the circumstances, was there an enforceable verbal contract between the plaintiffs and defendant that would warrant the adjudication of the disputed property’s title to the plaintiffs? 

Answer:

Yes.

Conclusion:

The appellate court ruled that the defendant seller's acceptance of the $ 6,000 payment in excess of the amount due under the promissory note and his acquiescence in the plaintiff buyers' exercise of ownership over the disputed property supported a finding that the parties agreed to the price for the thing sold. The requirements of La. Civ. Code Ann. art. 1839 were satisfied by the actual delivery of the property and the defendant seller's recognition of the transfer under oath.