Unpublished Disposition, 923 F.2d 864 (9th Cir. 1991)

MEMORANDUM^* 

Jeff and Marcy Erickson appeal the district court's grant of summary judgment, dismissing their claim and declaring property forfeited in this civil forfeiture action. The Ericksons contend that they are innocent one-third owners of the seized land, by virtue of an oral contract. We agree with the district court that no disputed issue of material fact exists, the decision of which would exempt their alleged oral contract from the Statute of Frauds. Accordingly, we affirm.

BACKGROUND

John Carl Webber, Jr. and Jacqueline Webber were convicted of selling cocaine from their 1280 acre ranch. The government seized that ranch in a forfeiture action pursuant to 21 U.S.C. § 881(a) (7). The Ericksons--the Webbers' daughter and son-in-law--filed a claim against that action, alleging that they owned one-third of the ranch, and that they were innocent of any knowledge of or participation in illegal activities.

The Ericksons contend that their ownership interest in the ranch was secured by their full or partial performance of an oral contract between them and the Webbers. This contract allegedly provided that the Ericksons would acquire one-third ownership of the ranch for living and working on it. The only witnesses to this contract were the Ericksons and the Webbers.

Jeff Erickson described the terms of that contract in his deposition:

My understanding would be, if he died, he would have it willed--a third of it willed to us, or that, going back to a statement that he made to me, that he would give me 10 percent of my third a year, as long as I lived and worked on the property. I had to earn it, in other words.

Supplemental Excerpt of Record (SER) at 106.¹ 

Although Marcy Erickson never articulated the terms of this contract, it is apparent from her comments at joint depositions with her husband, that she generally concurred in his understanding of that contract. She was, however, less certain about the 10 percent per year "buy-in:"

Q. And at that time, did [John Carl Webber, Jr.] say that 10 percent would be left to you per year?

A. [Marcy Erickson] I don't know.

SER 107.

There is no testimony from John Carl Webber, Jr. regarding the contract. Jacqueline Webber's deposition testimony corroborates the existence of the contract, although her statement of its terms is quite ambiguous:

Q. Do you remember what agreement your husband had with Jeff and Marcy Erickson?

A. [Jacqueline Webber] That he could work and anything he cleared he could have and that a third of the place would be his.

SER 79.

The Ericksons moved onto the Ranch in 1985. They lived in a trailer home that they had acquired from Marcy's grandfather, which was converted into a permanent home from funds provided by John Carl Webber, Jr. Jeff Erickson worked on the ranch, usually under the direction of Mr. Webber. He expended considerable effort clearing land and installing an irrigation system for the ranch, as well as improving his own homesite, which was a considerable distance from the Webbers' main ranch house. All income from the ranch was received by the Webbers, who paid the Ericksons an unaccounted amount necessary to meet their expenses.

The Ericksons had strained relationships with the Webbers and with another daughter and son-in-law that lived on the ranch, but they "decided to stay on the ranch and make a go of it as we feel we have a stake in the ranch and someday part of it will be ours." SER 190d.

When the government seized the ranch and sought forfeiture under 21 U.S.C. § 881(a) (7),²  the Ericksons filed a claim that, as innocent one-third owners of the property, their interest in the property was exempt from seizure.³  The district court granted summary judgment for the government, holding that " [i]n the absence of a writing evidencing the transfer of some right, title or interest in the property to the Ericksons prior to the forfeiture proceeding, the court finds that the Ericksons have no ownership interest in the ranch." Opinion at 7, ER 21.

DISCUSSION

Normally, the Statute of Frauds, adopted by Oregon at ORS 41.580(5), precludes the enforcement of an oral contract for the transfer of land. The Ericksons contend, however, that the Statute does not apply in this case because their contract is evidenced by substantial performance. We disagree.

It is, indeed, possible for substantial performance of an oral contract to take that contract out of the Statute of Frauds. Stevens v. Good Samaritan Hospital, 264 Or. 200, 504 P.2d 749, 750 (1972). But Oregon courts are reluctant to enforce an oral contract for land in the absence of clear and convincing evidence of the existence of the contract, and the party arguing for performance of the oral contract must provide evidence that the contract was "definite, certain and reasonable in its terms." Hawkins v. Toombs, 194 Or. 478, 242 P.2d 194, 197 (1952); accord, Losey v. O-Hair, 160 Or. 63, 83 P.2d 493 (1938).

Furthermore, Oregon courts hold that performance of an oral contract does not escape the Statute of Frauds unless that performance is "unequivocally and exclusively referable to the contract, in the sense that it must, of itself, give rise to an inference of the existence of the contract, and the doing of it must not be susceptible of being otherwise reasonably accounted for." Strong v. Hall, 253 Or. 61 453 P.2d 425, 429 (1969).

The Erickson's claim clearly founders on the second of these two requirements for avoiding the State of Frauds.⁴  They have not shown that the oral contract was "definite, certain and reasonable in its terms." Hawkins v. Toombs, supra, 242 P.2d at 197. Their own testimony as to the terms reflects considerable ambiguity as to how and when their ownership interest would vest. In fact, the Erickson's understanding on that score is plainly inconsistent. On the one hand, they testify that their one-third interest will be completely earned after three years of living and working on the ranch. On the other hand, they testify repeatedly that their interest will vest on Mr. Webber's death. (He is alive.)

Jeff Erickson repeatedly asserts these contradictory terms at the same time. See SER 106, 189, 190c. Marcy Erickson's only statement regarding the ten percent per year provision is that she did not know if that promise was made by her father when the agreement was made. SER 107. Mrs. Webber's statement of the terms of the contract is completely vague: " [Jeff] could work and anything he cleared he could have and that a third of the place would be his." SER 79.

Much of the testimony of the Erickson's indicates that they did not believe that they currently owned a share of the ranch at the time the Webber's were charged with drug dealing. See, e.g.:

Q. And could there by any such circumstance if he got mad at you like that and said, "Jeff, you're fired, get out of here"?

A. [Jeff]. Yes.

Q. And what gave him the right to fire you?

A. He still owned the ranch.

MRS. ERICKSON: Property.

Q. Now, Marcy, you said something.

MRS. ERICKSON: I said the property. When he said ranch, I said property.

Q. What does property refer to? I want the record to reflect all comments being made here.

MRS. ERICKSON: I meant the land.

Q. So he had the right to fire Jeff because he owned the land? Is that what you're saying?

MRS. ERICKSON: Yeah. Because he still owned it legally.

SER at 156. See also:

We moved from the West Linn area of Oregon at the invitation of John Carl Webber, Jr. who told us that he would make us partners in the ranching operation and that the ranch would some day in part be left to Marcie and myself if I would work on it with him.

(Jeff Erickson) SER at 190c.

The evidence clearly establishes that the Ericksons moved onto the ranch with an understanding that "some day" they would acquire an ownership interest in that ranch in exchange for living and working on it. Unfortunately, that understanding was not reduced to writing. Neither their performance of that contract, nor their testimony as to its provisions provides sufficient guidance to its essential terms to permit us to avoid the admonition of the Statute of Frauds that such an oral contract cannot be enforced. The judgment of the district court is, therefore, AFFIRMED.⁵