NE Code § 36-103 (2021)
2021 Nebraska Revised Statutes|Chapter 36 - Fraud and Voidable Transactions|36-103 - Interest in land; how created.

36-103.  Interest in land; how created.No estate or interest in land, other than leases for a term of one year from the making thereof, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by operation of law, or by deed of conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same.Source   R.S.1866, c. 43, § 62, p. 292;   Laws 1903, c. 44, § 1, p. 311;   R.S.1913, § 2623;   C.S.1922, § 2451;   C.S.1929, § 36-103;   R.S.1943, § 36-103. Annotations  1. Oral agreements not within statute 2. Oral agreements within statute 3. Effect of part performance 4. Trusts 5. Leases 6. Specific performance 7. Miscellaneous 1. Oral agreements not within statute Where one employs an agent to negotiate for purchase of real estate, contract is not within inhibition of this section. Wiskocil v. Kliment, 155 Neb. 103, 50 N.W.2d 786 (1952). Agreement for partnership to furnish money to buy and sell land is not within statute. Greusel v. Payne, 107 Neb. 84, 185 N.W. 336 (1921). An oral contract for services, the consideration to be paid when the promisor shall receive his anticipated share out of the estate of his father, not yet deceased, construed as fixing time of payment, and not within statute. Macfarland v. Callahan, 102 Neb. 54, 165 N.W. 889 (1917). Oral agreement of joint undertaking is not within statute. Kohl v. Munson, 97 Neb. 170, 149 N.W. 314 (1914). Oral assignment of rents due or to become due, is not interest in land. Yeiser v. Jetter, 86 Neb. 352, 125 N.W. 632 (1910). Contract whereby one agrees to look up, purchase, improve and resell property, the other to advance money and take title, and both to share profits, is not within statute. Rice v. Parrott, 76 Neb. 501, 107 N.W. 840 (1906), aff'd on rehearing, 76 Neb. 505, 111 N.W. 583 (1906). Oral agreement of agent to purchase land for principal does not create estate in land. Johnson v. Hayward, 74 Neb. 157, 103 N.W. 1058 (1905), aff'd on rehearing, 74 Neb. 166, 107 N.W. 384 (1905). Contract to bid in premises at mortgage sale, resell at private sale, and pay over excess, is not within statute. Jones Nat'l Bank v. Price, 37 Neb. 291, 55 N.W. 1045 (1893). Oral agreement by mortgagee to allow second mortgagees, not parties to action to redeem without suit, is not within statute. Davis v. Greenwood, 2 Neb. Unof. 317, 96 N.W. 526 (1902). 2. Oral agreements within statute Oral contracts to make a testamentary provision in consideration of services which are to be rendered by another are on their face void as within the statute of frauds because not in writing, and even though proved by clear and satisfactory evidence, they are not enforceable unless there has been such performance as the law requires, and this latter determination as to the sufficiency of part performance is generally a question of fact. In re Estate of Nicholson, 211 Neb. 805, 320 N.W.2d 739 (1982). An oral agreement purporting to establish an express trust in real estate is within this section. Halsted v. Halsted, 169 Neb. 325, 99 N.W.2d 384 (1959). Oral agreement to repurchase was void. Winkelmann v. Luebbe, 151 Neb. 543, 38 N.W.2d 334 (1949). Oral agreement to bid in land at judicial sale for benefit of another was within this section. Smith v. Kinsey, 148 Neb. 786, 28 N.W.2d 588 (1947). An oral agreement for transfer of title to real estate is void. Hackbarth v. Hackbarth, 146 Neb. 919, 22 N.W.2d 184 (1946). Oral contract to convey land is unenforceable unless there has been part performance by the promisee which is solely referable to the contract. Taylor v. Clark, 143 Neb. 563, 13 N.W.2d 621 (1943). An agreement to give a lien on real estate which would have the same effect as a mortgage is invalid if not in writing. Penn Mutual Life Ins. Co. v. Kimble, 132 Neb. 408, 272 N.W. 231 (1937). An interest in land, with certain exceptions, cannot be assigned except by deed of conveyance. Kramper v. St. John's Church, 131 Neb. 840, 270 N.W. 478 (1936). Oral pledge of title deed, naming third person as grantee, does not create valid mortgage on real estate. Shafer v. Wilsonville Elevator Co., 121 Neb. 280, 237 N.W. 155 (1931). Oral agreement to give mortgage is void and not enforceable as equitable mortgage, notwithstanding lender's performance by making loan. Herring v. Whitford, 119 Neb. 725, 232 N.W. 581 (1930). Exception of estates arising from operation of law was not intended to give effect to contracts imperfectly executed. Bloomfield State Bank v. Miller, 55 Neb. 243, 75 N.W. 569 (1898). Oral agreement to warrant and defend title is within statute. Kelley v. Palmer, 42 Neb. 423, 60 N.W. 924 (1894). It is the general rule that an oral agreement for the transfer of title to real estate is voidable under the statute of frauds. Ficke v. Wolken, 22 Neb. App. 587, 858 N.W.2d 249 (2014). 3. Effect of part performance To establish the part performance exception to the statute of frauds, the alleged acts of performance must speak for themselves. Ficke v. Wolken, 291 Neb. 482, 868 N.W.2d 305 (2015). Court of equity will give effect to parol grant of easement where it is certain in its terms and there has been such part performance on part of grantee as to take the case out of the statute of frauds. Brown v. Story, 133 Neb. 535, 276 N.W. 155 (1937). Where past performance of services was not rendered in pursuance of agreement made but prior thereto, such performance was not sufficient to take agreement out of statute. Wehnes v. Marsh, 103 Neb. 120, 170 N.W. 606 (1919). Statute does not apply to an executed parol contract to transfer title to real estate where the only thing remaining to be performed is payment of the purchase price. Sowards v. Moss, 58 Neb. 119, 78 N.W. 373 (1899). Where one party completes construction of party wall under oral agreement of each party to pay one-half of the cost thereof, recovery can be had upon the promise to pay. Stuht v. Sweesy, 48 Neb. 767, 67 N.W. 748 (1896). It is no defense to action for value of land conveyed that contract was oral. Galley v. Galley, 14 Neb. 174, 15 N.W. 318 (1883). 4. Trusts Where the facts of a case call for the creation of a constructive trust, such trust arises by operation of law and is an exception to the statute of frauds. Fleury v. Chrisman, 200 Neb. 584, 264 N.W.2d 839 (1978). Statute of frauds does not apply to a constructive trust. Maddox v. Maddox, 151 Neb. 626, 38 N.W.2d 547 (1949). An attempt to establish an oral trust in real estate is within statute. Anderson v. Anderson, 150 Neb. 879, 36 N.W.2d 287 (1949). Resulting and constructive trusts are excepted from the operation of the statute of frauds. O'Shea v. O'Shea, 143 Neb. 843, 11 N.W.2d 540 (1943). Even though contract is unenforceable under statute of frauds, it does not destroy agent's duty not to intermingle principal's property with his own property. Lamb v. Sandall, 135 Neb. 300, 281 N.W. 37 (1938). The statute of frauds does not affect a resulting trust. Windle v. Kelly, 135 Neb. 143, 280 N.W. 445 (1938). Resulting trust for benefit of creditors is not within statute. Bodie v. Robertson, 113 Neb. 408, 203 N.W. 590 (1925). Resulting trust for benefit of grantor who retains possession is not within statute. Doll v. Doll, 96 Neb. 185, 147 N.W. 471 (1914). When two parties enter into oral contract to purchase land together, and one makes the purchase and payment and the other advances no money, a claimed trust arising therefrom is unenforceable. Norton v. Brink, 75 Neb. 566, 106 N.W. 668 (1906), 75 Neb. 575, 110 N.W. 669 (1906). Purchase of mortgaged premises at sale for debtor, under oral agreement to hold same as security, is an enforceable trust. Dickson v. Stewart, 71 Neb. 424, 98 N.W. 1085 (1904). Express trust cannot arise out of parol promise of grantee to convey to another; however, a constructive trust is found due to constructive fraud. Pollard v. McKenney, 69 Neb. 742, 96 N.W. 679 (1903), modified, 69 Neb. 753, 101 N.W. 9 (1903). Where beneficiary takes possession of land purchased in pursuance of a parol trust agreement, the statute of frauds is satisfied. Oberlender v. Butcher, 67 Neb. 410, 93 N.W. 764 (1903). Trust in personalty is valid between parties. Wolf v. Haslach, 65 Neb. 303, 91 N.W. 283 (1902). Where right to recover depends on establishing an interest in land, an oral trust will fail and parol agreement to give one half beneficial interest falls in latter category. Cameron v. Nelson, 57 Neb. 381, 77 N.W. 771 (1899). Parol declaration of trust must be clear and explicit, and point out subject matter and beneficiary though statute is not pleaded. Kobarg v. Greeder, 51 Neb. 365, 70 N.W. 921 (1897); Roddy v. Roddy, 3 Neb. 96 (1873). Parol agreement to reconvey is within statute and does not create express trust. Thomas v. Churchill, 48 Neb. 266, 67 N.W. 192 (1896). Instrument creating a trust need not be a deed. Carter v. Gibson, 29 Neb. 324, 45 N.W. 634 (1890). A creditor cannot levy on land because held under oral trust. Cresswell v. McCaig, 11 Neb. 222, 9 N.W. 52 (1881). Express trust must be in writing. Elder v. Webber, 3 Neb. Unof. 534, 92 N.W. 126 (1902). Constructive trusts are excepted from the operation of the statute of frauds. I.P. Homeowners, Inc. v. Radtke, 5 Neb. App. 271, 558 N.W.2d 582 (1997). 5. Leases Where a written lease for five years was modified by parol, and is subsequently fully carried out as modified, party cannot thereafter challenge the modification as being void under the statute of frauds. Corcoran v. Leon's, Inc., 126 Neb. 149, 252 N.W. 819 (1934). Where by agreement between all the partners a new member is admitted to the firm, he acquires an interest in a lease to the partnership by operation of law, and such transfer is not within the statute of frauds. Gorder & Son v. Pankonin, 83 Neb. 204, 119 N.W. 449 (1909). Where a written lease has been modified by parol, and fully carried out as modified, it is a bar to action for rent on old lease. Bowman v. Wright, 65 Neb. 661, 91 N.W. 580 (1902). Lease signed in name of agent is valid if it purports to be for the principal. Wheeler v. Walden, 17 Neb. 122, 22 N.W. 346 (1885). Lease to A for life of B is not within statute. McCormick v. Drummett, 9 Neb. 384, 2 N.W. 729 (1879). Surrender and assignment of lease is not provable by parol. Kittle v. St. John, 7 Neb. 73 (1878). Where lessee quits under agreement, and lessor takes possession or accepts rents from another, lease is surrendered by operation of law. Boyd v. George, 2 Neb. Unof. 420, 89 N.W. 271 (1902). 6. Specific performance One seeking specific performance of an oral contract to leave property to another has the burden of proving not only the contract but also that he has performed the obligations imposed upon him thereunder. The evidence of such agreement must be clear, satisfactory, and unequivocal. Guynan v. Guynan, 208 Neb. 775, 305 N.W.2d 882 (1981). In an action for specific performance of an oral contract within the statute of frauds, evidence of the existence of the contract and its terms must be clear, satisfactory and unequivocal. Caspers v. Frerichs, 146 Neb. 740, 21 N.W.2d 513 (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). Specific performance will not be granted of oral contract to convey real estate made by agent without authority. Shelby v. Platte Valley Public Power & Irr. Dist., 134 Neb. 354, 278 N.W. 568 (1938). An oral contract partly performed, which the statute of frauds requires to be in writing, will be enforced by a court of equity. Campbell v. Kewanee Finance Co., 133 Neb. 887, 277 N.W. 593 (1938). An oral agreement to devise homestead to son for care during parents' lifetime. Denesia v. Denesia, 116 Neb. 789, 219 N.W. 142 (1928). Where preliminary agreement required execution of ninety-nine year lease on or before sixty days from date, delay for over five months in tendering signed lease prevented specific performance. Mercer v. Payne & Sons Co., 115 Neb. 420, 213 N.W. 813 (1927). Oral agreement to adopt, and devise lands, may be specifically enforced where fully performed by one party. Kofka v. Rosicky, 41 Neb. 328, 59 N.W. 788 (1894). To authorize specific performance, only party to be charged need have signed memorandum. Gartrell v. Stafford, 12 Neb. 545, 11 N.W. 732 (1882). 7. Miscellaneous An exception is outside of this section, but a reservation must comply with this section. Walters v. Sporer, 298 Neb. 536, 905 N.W.2d 70 (2017). The acceptance of a deed operates to satisfy the requirement that a contract creating an interest in land must be signed by the party to be charged therewith. Walters v. Sporer, 298 Neb. 536, 905 N.W.2d 70 (2017). District court may decree legal title to real estate in one who furnished the purchase money and deed named another as grantee. Kollbaum v. K & K Chevrolet, Inc., 196 Neb. 555, 244 N.W.2d 173 (1976). Interest in land may be created by operation of law. Jenkins v. Jenkins, 151 Neb. 113, 36 N.W.2d 637 (1949). A valid contract in writing for the sale of land may be made by correspondence, and it is not necessary that there shall be a single paper signed by the parties containing all of the conditions of the contract. O'Shea v. Smith, 142 Neb. 231, 5 N.W.2d 348 (1942). For purposes of taxation a mortgage on real estate is declared by statute to be an interest therein. North Platte Lodge B.P.O.E. v. Board of Equalization, 125 Neb. 841, 252 N.W. 313 (1934). Oral contracts are not void but voidable at option of either party. Bodie v. Robertson, 113 Neb. 408, 203 N.W. 590 (1925). It is against conscience that one man shall be enriched to the injury and cost of another, induced by his own act. Smith v. Kober, 108 Neb. 768, 189 N.W. 377 (1922). It is doubtful if ownership of land can be transferred by parol even if such attempted parol transfer is afterwards acknowledged in writing. Miles v. Lampe, 102 Neb. 619, 168 N.W. 640 (1918). Petition not alleging agreement to sell, in writing, is sufficient after judgment. Schmid v. Schmid, 37 Neb. 629, 56 N.W. 207 (1893). Deed executed, witnessed and delivered, passes title though not acknowledged. Harrison v. McWhirter, 12 Neb. 152, 10 N.W. 545 (1881). Parol testimony is admissible in action for value of property conveyed. Skow v. Locke, 3 Neb. Unof. 176, 91 N.W. 204 (1902). Where vendor signs agreement to convey, vendee accepting memorandum and taking possession, signature is unnecessary though contemplated. Chambers v. Barker, 2 Neb. Unof. 523, 89 N.W. 388 (1902).