performance, compensation will be allowed to the extent of the purchase money actually paid on the alleged contract, and, where, in such a case, facts are shown entitling the plaintiff to have a lien declared on the real estate for reimbursement, the court may retain the case for the purpose of affording such relief, and compensation may be awarded for the improvements made in good faith on the premises.45 Sec. 459. Decree of court in default of deed to operate as a conveyance Sheriff may make conveyance. When a judgment has been rendered for a conveyance, release or acquittance, in any court of this State, and the party against whom the judgment has been rendered does not comply therewith by the time appointed, such judgment shall have the same operation and effect, and be as available as if the conveyance, release or acquittance had been executed conformably to such judgment; or the court may order such conveyance, release or acquittance to be executed in the first instance by the sheriff; and such conveyance, release or acquittance will have the same effect as if executed by the party against whom the judgment was rendered. This paragraph shall apply to decrees rendered or to be rendered in suits now pending. Geil v. Geil, 64 Hun, 600, 66 Am. Dec. 773. The principle upon which courts of equity undertake to enforce agreements of this kind is well stated in Bollman v. Overall, 80 Ala. 451, 2 So. 2, 60 Am. Rep. 107. It is not claimed, of course, that any court has power to compel a person to execute a last will and testament, carrying out his agreement to bequeath a legacy, for this can be done only in the lifetime of the testator, and no breach of the agreement can be assumed so long as he lives. And after his death, he is no longer capable of doing the thing agreed by him to be 46 done. The rule upon which the courts proceed is to construe such an agreement, unless void, under the statute of frauds, or for other reason, to bind the property of the testator or intestate, so far as to fasten a trust on it in favor of the promisee, to enforce such trust against the heirs and personal representatives of the deceased, or others holding under them, charged with notice of the trust. See, also, Newton v. Lyon, 7 Kan. App. 811. 45 Superior v. Mehlin, 25 Okla. 809, 108 Pac. 545. 46 Snyder, 5,922; Wilson, 4,589; Kansas, 4,849 (1901), identical. A decree requiring performance by one party will also require, if possible, performance by the other.47 Sec. 460. Decree may contain terms of mortgage agreed upon by contract. Where a contract for the sale of real estate provides that the purchaser shall execute a mortgage to secure the purchase price, and is silent with respect to the terms and conditions of the mortgage, it is proper for the court to provide in the decree for specific performance, that the mortgage shall contain the usual terms and conditions of a real estate mortgage.48 Sec. 461. The procedure where the statute of frauds is interposed as a defense. Where a contract is, by the statute of frauds, required to be in writing, the petition need not state affirmatively that it is in writing; but if not in writing, the fact must be stated in the answer,* 49 but where the defense is based upon a promise required by the statute of frauds to be in writing, the answer must show that such promise was in writing.50 A contract valid where it is made to be performed will be enforced in this State, although within the inhibition of the statute of frauds, of this State.51 Sec. 462. The venue of the action. An action to compel the specific performance of real estate may be brought in the county where the land lies, or where the defendants, or any of them, reside.52 47 Craft v. Bent, 8 Kan. 324. 48 Harrel V. Neef, 102 Pac. (Kan.) 838. 50 Reinheimer v. Carter, 31 O. S. 579. 51 Eldridge v. Heaton, 7 C. C. (Ohio), 499. 52 Snyder, 5,581; Act of April, 1908; Kansas, 4,477 (1901), identical; Nebraska, 1,051 (1907), identical; see Close v. Wheston, 65 Kan. 830, 70 Pac. 891. Sec. 463. The procedure by which a contract for the sale of real estate is specifically enforced-Petition by vendor to compel vendee to complete contract of purchase. Comes now the plaintiff, and, for his cause of action herein, alleges and states: 1. That on the -day of 19-, he was the owner in fee simple of the following described premises, situated in the State of Oklahoma, to-wit: (Here insert de county of scription.) 2. That on the day of, 19-, plaintiff entered into a contract in writing with defendant, whereby it was agreed that plaintiff would sell said real estate, and defendant agreed to purchase the same for the sum of $ payments, to-wit: $ thereof to be paid in bear interest at the rate of -, upon the following to be paid in cash, and the remainder years, said deferred payment to per cent., and to be secured by mortgage on the real estate sold. 3. That it was agreed between plaintiff and defendant that the sale was to be completed and the deed and mortgage passed between them on the day of 19-. 4. That upon the date last aforesaid, plaintiff duly tendered said defendant a good and sufficient deed for the above described premises, and has complied with all the conditions on his part to be performed pursuant to said agreement. 5. That the defendant upon said date refused, and still refuses to perform and carry out said contract, to make said purchase, or to pay said sum of $ or to execute said mort gage. Plaintiff prays, the premises considered, that said defendant be required to carry out said contract, to pay said purchase money, to execute said mortgage, and for such relief as is proper. Sec. 464. The petition by vendee to compel vendor to make Comes now the plaintiff, and, for his cause of action herein, day of the owner of and seized in fee simple of the following described real estate, to-wit: (Here give specific description of same.) 2. That on said day, to-wit: the 19-, plaintiff entered into an agreement in writing with the defendant, wherein it was agreed that, in consideration of the sum of -, to be paid by this plaintiff, in the following manner: (Here insert terms of agreement), that said defendant should sell and convey said real estate to plaintiff, by good and sufficient deed of warranty. 3. That on the day of, 19-, according to the terms of said contract, the plaintiff duly tendered to the defendant said sum of $ -, and requested him to convey said premises to plaintiff, as provided by said agreement, but the defendant then refused, and still refuses to execute and deliver said conveyance. 4. That the plaintiff has duly performed all the conditions of said agreement on his part to be performed, and is now ready and willing to pay said purchase money, and now brings said sum of $ into court, and offers the same to said defendant, upon his executing and delivering to plaintiff a sufficient conveyance of said premises, according to the terms of said contract. Plaintiff prays, premises considered, that the court order and decree that the defendant convey said premises to plaintiff by good and sufficient deed, and for such relief as may seem equitable. Attorneys for Plaintiff. Sec. 465. Petition to enforce performance of verbal contract Comes now the plaintiff, and, for his cause of action herein, alleges and states: day of 1. That on the 19-, the defendant was the owner in fee simple of the following described premises, to-wit: (Here specifically describe same), and on that day, said plaintiff and said defendant entered into a contract, not in writing, by which said defendant agreed to sell said premises to plaintiff for the sum of $ 2. That the terms of said contract were as follows: (Here state terms of agreement in detail); that the plaintiff paid to defendant, on the day of making said contract, the sum of as a part of the purchase price thereof, and agreed to pay the balance thereof in the following manner: (Here state terms thereof.) $ 3. That the plaintiff immediately went into possession of said premises, and is still in possession of the same, and has, while he has been in possession, made permanent and valuable improvements thereon, to-wit: (Here state improvements made.) day of 19-, plaintiff tendered -, the balance of the purchase 4. That on the to defendant the sum of $ money remaining due from him on said sale, and demanded of defendant that he make and execute a deed for said premises in accordance with their said agreement, but that defendant then refused so to do, and still refuses to execute and deliver a deed to plaintiff for said premises. 5. That the plaintiff has duly performed all the conditions of said agreement by him to be performed, and is still willing |