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September 14, 1993



Before Berrey, P.j., Breckenridge and Hanna, JJ.

The opinion of the court was delivered by: Breckenridge

This appeal concerns an action seeking specific performance of an oral contract to purchase residential real estate. Joe David Dial and Sharon Lorraine Dial, husband and wife, appeal from the trial court's judgment vesting fee simple title to the real estate at issue in Clara B. Skaggs. This suit originated in a seven count petition. In Counts I, II and III against the Dials, Skaggs requested the court to quiet title in her favor, grant a declaratory judgment and decree specific performance, respectively. Skaggs requested recovery against the Dials and Audra Jo Stith *fn1 in Counts IV, V, VI and VII for ejectment, slander of title, conversion of chattels and trespass to realty, respectively. The trial court ordered that the oral contract be specifically performed and that the Dials, after satisfying all liens on the property, execute a deed conveying the property to Skaggs so that Skaggs is vested with fee simple title to the property. The trial court found the Dials and Stith guilty of ejectment, conversion and trespass, for which the court awarded damages in the amount of $8,700.00 and punitive damages in the amount of $20.00. The trial court also awarded Skaggs $400.00 a month, the monthly rental value of the property, until she is restored to possession of the property, and $4,500.00 for attorney's fees.

The Dials raise two points on appeal arguing that the trial court erred in: 1) denying their motion for a directed finding because the Statute of Frauds applied; and 2) finding that there was a contract to sell because the terms of the oral agreement were not clear, explicit and definite. The judgment is affirmed.

At issue in the instant case is title to the residence and lot located at 1018 N.E. 44th Terrace (the property) in Kansas City, Clay County, Missouri. In July of 1969, Skaggs entered into an oral agreement with the Dials to purchase the property. Skaggs had known the Dials for a number of years because Skagg's brother was Sharon Dial's stepfather. Skaggs orally agreed to pay the Dials $1,000.00 as a down payment for the equity in the property and to, thereafter, make payments to pay off the $11,650.00 mortgage. Title to the property remained in the Dials' name even after Skaggs agreed to purchase the property so that the financing could continue through a GI loan. Sharon Dial told Skaggs that if the property was placed in Skaggs' name, the mortgage payments would be higher.

Skaggs began residing on the property shortly after she agreed to purchase it. Skaggs made mortgage payments on the property from 1969 through 1988. *fn2 Exhibits admitted at trial indicated that the checks for the mortgage payments were made out to the mortgage company, not to the Dials. The exhibits also showed that correspondence from the mortgage company, as well as annual statements, payment books, and interest statements for income tax purposes, were addressed to Joe Dial in care of Skaggs at the street address of the property. Skaggs paid the taxes and maintained insurance on the property. Skaggs also paid all bills associated with the property and the utilities were in her name.

Skaggs introduced evidence at trial that, since 1969, she had paid for $11,000.00 of improvements to the property. The improvements made by Skaggs to the house included the addition of aluminum siding, a porch, a shower, and a new roof, the installation of carpet, paneling and kitchen cabinets, and various plumbing improvements. Skaggs also installed a fence in the front yard and planted trees and flowers on the property.

Prior to the addition of aluminum siding to the house, Skaggs attempted to secure a bank loan to pay for the siding. The bank required proof that Skaggs was buying the house so the Dials signed a notarized statement, dated July 31, 1973, which read as follows:

This is to certify that Mrs. Clara B. Skaggs is buying our home. On July 10, 1969, we received $1000.00 as down payment on Block , Lot 11, Kansas City North, Missouri. She has been making the house payments to Don J. Mac Murray Company, who carries the mortgage in our name until the property is paid for.

She is to make any and all improvements on this property.

On April 26, 1977, unbeknownst to Skaggs, the Dials borrowed $19,424.26 from Homemakers Financial Service. The Dials executed a deed of trust with the property serving as security for the loan. The Dials borrowed $25,000 from GECC Financial Services on July 31, 1988 and again, without Skaggs' knowledge, used the property as security for the loan.

In the winter of 1989, Skaggs allowed the Dials to move in with her because of the difficulty they encountered in traveling back and forth through the snow to the farm where they resided in Cameron, Missouri. On May 3, 1989, the Dials borrowed $66,446.43 from Ford Consumer Finance Company by placing a $66,000 mortgage on the property which also resulted in the GI loan being paid off. The Dials told Skaggs to stop making mortgage payments because the mortgage had been completely paid off. Although the Dials informed Skaggs that the mortgage was completely paid off, they did not transfer title to her.

In January of 1989, the Dials' daughter, Audra Jo Stith, also moved into the house. Although the Dials and Stith moved out sometime during 1989, they moved back in again during the winter of 1990. In early 1991, the Dials and Stith denied Skaggs access to her house after Skaggs requested that they move out of the house. Skaggs was forced to live in the garage of the house, which Skaggs had made into a small apartment prior to the time the Dials and Stith moved into the house. The Dials changed the locks on the front door and Stith nailed shut the door from the garage to the house. Without Skaggs' permission, the Dials moved Skaggs' furniture out of the house onto the back porch, cut vegetation and trees down on the property, and removed the fence in the front yard.

The Dials filed a petition for bankruptcy on July 10, 1991. Under the section of the petition titled "Schedule B--Statement of All Property of Debtor," the Dials listed their real property in Cameron, Missouri but did not list the property in Kansas City, Missouri. The exhibits at trial included an amended Schedule B-1 which listed the Kansas City property as part of the Dials' real property. The amended schedule, however, although notarized on ...

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