Jimmy D. HARRIS, Petitioner, v. Milton T. POTTS et al., Respondents, 545 S.W.2d 126

GREENHILL, Chief Justice. Jimmy D. Harris, plaintiff below, sought title to an interest in a tract of land under an oral contract of sale which he had made with the owners in 1962. After he presented his evidence, the trial court instructed the jury to enter a verdict for the defendants and entered judgment that Harris take nothing. The court of civil appeals affirmed the judgment on the ground that Harris’ suit was barred by the Statute of Frauds, Texas Business and Commerce Code,

Section 26.01. 528 S.W.2d 321. We affirm. Because Harris’ claim rests on an oral contract for the sale of realty, this case falls squarely under the Statute of Frauds; and his claim is unenforceable under the Statute unless he can show that the facts of this case lie within the exception announced in Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921). That case allows the purchaser of realty to enforce the oral contract of sale if he shows that he made “payment of the consideration,” that he took possession of the land, and that he made valuable improvements on the property.

Further, “Each of these three elements is indispensable, and they must all exist.” Hooks, supra, 229 S.W. at 1116. The court of civil appeals held that Harris had not introduced any evidence that he took possession of the land, and therefore affirmed the trial court judgment. We agree that evidence of possession or occupancy was wholly lacking at the trial; and, since possession of land is one of the three essential elements under Hooks, this suit is barred by the Statute of Frauds. The land in question was unoccupied and uncultivated.

Since it was near Lake Livingston, it was contemplated that it might be developed as a subdivision and divided into some 250 lots. There is evidence that back around 1962, the tract in question was improved by the grading of some streets and the installation of some culverts for drainage. This work was evidently done by an independent contractor. There is no evidence that Harris supervised these activities, and he testified that he had no

part in employing the contractor. Harris and the record owners signed a note which was executed to finance these improvements, and he paid his proportionate share of the principal and interest. None of the lots was sold. The evidence introduced by Harris shows that he never erected any type of structure on the land, neither a dwelling place, an office, nor even a tent.

As he stated at the trial, “The only thing that would come close to having an office or anything was a picnic table we put there for writing up contracts instead of having to do it in the car.” Neither he nor anyone connected with him ever spent even one night on the land. The only times that Harris entered the property were when he conducted cleaning operations on a few weekends, and when he subsequently, with the consent of one of the defendants, showed the property to prospective buyers.

Harris’ activities in cleaning the land consisted of clearing three of the 250 lots on the tract of brush and trees, whitewashing some trees, putting up street signs, and replacing survey stakes that had been knocked over by other peoples’ cows or children. Harris never attempted to cultivate the land, to fence it, or to run livestock on it. In the six or seven years before trial, he never set foot on the property other than, in his words, “driving through occasionally.” We hold that these facts are no evidence that Harris took possession or occupancy of the property as is required under Hooks v.

Bridgewater, supra. They may be evidence that Harris constructed valuable improvements; but there is a distinction between making improvements on land, in person or by agents, and the occupancy or possession of land. The Hooks rule requires actual possession or occupancy. Since there is no evidence that Harris occupied or took possession of the land under the oral contract of sale, the Statute of Frauds bars his claim; and the trial court’s instructed verdict in favor of the defendants was proper. The judgment of the court of civil appeals is affirmed. Dissenting opinion by DENTON, J., in which McGEE and SAM D.

JOHNSON, JJ., join. DANIEL, J., not sitting. . Vernon’s Texas Codes Annotated, Business & Commerce, § 26.01. . We do not have before us an action to recover the consideration paid, or one for the recovery of other sums used to improve the property. The Hooks opinion stated in part, “The value of the consideration may ... be recovered.” 229 S.W. at 1117.