Arguello v. Edinger.

ARGUELLO et al. v. EDINGER et al.

Courts of Equity in this State possess the power to enforce the specific performance of verbal contracts for the sale of land in cases of part performance of such contracts. Nothing can be regarded as a part performance, to take a verbal contract for the sale of land out of the operation of the statute, which does not place the party in a situation which is a fraud upon him unless the contract be executed. Taking possession is held such act of part performance, as the party might be treated as a trespasser if he could not invoke the protection of the contract. And if, upon the faith of the contract, the purchaser should proceed to make valuable improvements, the most palpable fraud would be perpetrated if the vendor were permitted to withdraw from its execution.

The defence arising from a verbal contract for the sale of land, accompanied with acts of part performance, taking the contract from the operation of the statute, is permissible, under our system of practice, to an action of ejectment for the recovery of the premises. The only effect of this mode of asserting the rights of the defendants, instead of filing a bill in equity, is to require the Court to pass upon the questions raised by the answer in the first instance. If, upon hearing the evidence, the Court should determine there was ground for relief, it would enjoin the further prosecution of the action with its decree for a specific performance; and, on the other hand, if it should refuse the relief, it would call a jury to determine the issue upon the general denial.

Where the answer discloses the fact that the contract is not in writing, but also avers acts of part performance, which take the contract out of the operation of the statute, the answer is not demurrable.

Abell v. Calderwood et al., 4 Cal., 90, overruled.

APPEAL from the District Court of the Twelfth Judicial District, County of San Mateo.

The complaint is in the ordinary form of complaints in the action of ejectment.

The following is the answer of the defendant, J. P. Edinger. The suit was discontinued as to the other defendant:

"And now comes the said defendant, J. P. Edinger, and for answer to the complaint filed against him in this cause, says that he denies the said complaint, and each and every allegation therein contained, and specifically, as if each allegation were here again repeated, and each specifically denied; wherefore he prays judgment, etc.

"And this defendant for further answer to said complaint, says, that heretofore, to wit, on or about the first day of May, A. D. 1851, at the county of San Mateo aforesaid, the said plaintiffs then being the owners of said tract of land, in said complaint described, sold the following described part thereof to one William D. Harrington, now deceased, to wit: commencing at a point on the northerly end of the Laguna Grande, or Lake Raymundo, running thence easterly one mile, more or less, thence southerly about two and one-half miles, more or less, to a large madroño tree, thence westerly one-half mile, more or less, to the easterly line of the Copenger grant, thence northerly along

Arguello v. Edinger.

the line of the said Copenger grant and the said Laguna Grande, to the place of beginning, being about twelve hundred acres of land, and being the same land now fenced in, and for a long time past known as the Harrington Ranch, and including a rocky point of about one hundred acres adjoining said lake, not fenced, which said land, except said rocky point, is enclosed by a heavy worm-fence, erected by said Harrington; that said sale was so made to said William D. Harrington by the said S. M. Meses, one of said plaintiffs, who was then and is now the duly authorized attorney in fact of the others of said plaintiffs, by them thereto duly authorized to sell such land for them, and in their names, by a duly authorized power of attorney, executed and delivered to said Meses by them for said purpose; that said plaintiff, Meses, being so authorized as aforesaid, did on the day and year aforesaid, for himself and for the other plaintiffs, sell the above-described tract of land, the same being a part of the land named in said complaint, to the said William D. Harrington, for the price and consideration of five dollars per acre. The said sale was made by parol, the said Meses and the said plaintiffs alleging at the said time that it would not be proper for them to make a written conveyance of said land until they should have procured a patent for the same from the Government of the United States. The said Harrington, confiding in their representations, purchased said land by a parol contract, at and for the sum of five dollars per acre, to be paid as soon as a patent was obtained for said land from the United States as aforesaid, at which time the said plaintiffs then faithfully promised and agreed to convey to said William D. Harrington the said land, by a good and sufficient deed or conveyance in law. That in conformity with said contract of sale as aforesaid, the said plaintiffs then and there, as a part performance of the same, delivered the possession of said land to said William D. Harrington, who then with the knowledge of said plaintiffs, and with their assent and agreement, and under such color and assurance of title, entered upon said land, and proceeded to erect large and valuable permanent improvements thereon, which are of great value, to wit, of the value of fifteen thousand dollars, which said improvements consist in the erection of good and substantial dwellinghouses and barns, and in the erection of a good and permanent worm-fence around nearly the whole of said tract of land, together with divers cross and partition fences thereon, all of which said improvements were erected and constructed from timber and materials procured from lands other than the lands so purchased as aforesaid, and from lands in which said plaintiffs neither had nor claimed to have any interest; the materials so used as aforesaid being of the value of at least eight thousand dollars. That said plaintiff's were frequently present while and when said Harrington was making and erecting said improve

Arguello r. Edinger.

ments, well knowing that they were made by said Harrington under a claim of right to said land under and by virtue of the said purchase by him from said plaintiffs as aforesaid, and that said plaintiff's made no objection thereto, but, on the contrary, at all times encouraged said Harrington to make said improvements, faithfully promising him that they would fully execute their said contract by the conveyance of said land to him, as soon as the patent was issued for the same as aforesaid; that said Harrington occupied, possessed, enjoyed, and improved, said land, from the time of the making of said purchase exclusively, up to the time of his death, on or about the twenty-second day of June, A. D. 1857. That during said time, though the same would not become due and payable until the issuance of the patent as aforesaid, the said Harrington did pay to said plaintiffs sundry and divers sums of money, amounting in all to over fifteen hundred dollars, as a part payment of the consideration for said land. That previous to his death, the said Harrington made and executed, in due form of law, his last will and testament, by which said will he devised all his estate, both real and personal, a part of which and the greater part of which was the above described land, to his wife, Emily A. Harrington, subject to the payment of his debts, and appointed said plaintiff, S. M. Meses, his executor, giving him power to dispose of said land for the benefit of his said wife. That after the death of said William D. Harrington, to wit, on the eighteenth day of July, 1857, the said plaintiff, S. M. Meses, still recognizing and acknowledging the validity of said contract, and of such sale as aforesaid, appeared before the Probate Court in and for the county of San Mateo, and proved up said will, and took out letters of executorship on said estate of said Harrington, and took upon himself the duties of executing the provisions thereof, and while so acting as executor, acknowledging and recognizing the said land as the property of said estate, he frequently and repeatedly proposed and endeavored to lease the same for the benefit of said estate, and the widow of said Harrington. That he afterwards resigned his trust as such executor, and this defendant was, on the sixteenth day of November, A. D. 1857, duly appointed by the Probate Court of said county of San Mateo, adininistrator, with the will annexed of said estate of Harrington, and then and there took upon himself the duties thereof.

"This defendant admits that after he so became the only legal administrator of the estate of said Harrington, deceased, and became duly qualified and authorized to act as such, he did take the peaceable, quiet, and uninterrupted possession of the abovedescribed tract of land, part and parcel of the land named in said complaint, as he lawfully might as such administrator, but he denies that he ever held said land in any other right, or that he has or ever had possession of any other or greater part of the

Arguello v. Edinger.

said tract described in said complaint. This defendant further states that after he had so become the administrator of the estate of said Harrington, deceased, to wit, on the twenty-first day of December, A. D. 1857, and as soon as he had ascertained that the said plaintiffs had obtained a patent from the Government of the United States for said land, he tendered to the plaintiffs the full consideration promised or agreed by said Ilarrington to be paid for said land, to wit, the sum of $6,000, which was counted out and offered to plaintiff's in gold coin, and a deed demanded of them for said land, in compliance with their said contract with said Harrington, but that said plaintiffs then refused to either receive said money, or to convey said land, or to otherwise comply with their said contract, and with intent then to defraud this defendant as the administrator of the estate of said Harrington, and the widow of said deceased, and heirs of said estate, falsely represented that said contract for the purchase and sale of said land, had been rescinded by said Harrington in his lifetime; and said plaintiffs have ever since refused, and still do refuse to convey the said land, or otherwise execute said contract, but fraudulently claim to hold said land, together with the improvements so placed thereon by said Harrington in his lifetime and in good faith, and to retain the money so received of Harrington as payment upon said contract. This defendant further alleges, that the said sum of five dollars per acre was a full and fair consideration for said land at the time said contract of purchase and sale was made, and that the purchase was made in good faith by said Harrington; and the most lasting and valuable improvements made on said lands, under the most earnest promises by said plaintiffs that said lands would be conveyed as aforesaid, and that said plaintiff's always promised to comply with and discharge their part of said contract until after the death of said Harrington, and even after his deafh, they have acknowledged the full obligation thereof, but now they fraudulently refuse to perform the same. This defendant has offered, as aforesaid, and now still offers, to pay the full amount due to the plaintiff's for said land, and prays the Court, by its judgment or decree in this cause, to compel the said plaintiffs to convey the said land to this defendant, for the use of the estate of said Harrington, to be disposed of in compliance with the provisions of his said will, and to otherwise specifically perform said contract, and that if they fail to do so, this Court will do the same for them; and, also, that they be enjoined from proceeding further in their action at law against this defendant for the recovery of the possession of said land; or if, in the opinion of this Court, said plaintiff's can not be compelled to specifically perform said contract, then this defendant prays that this Court will give judgment in favor of this defendant as such administrator of said estate, for the sum of $15,000, so in good faith, and with the knowledge and assent of

Arguello v. Edinger.

said plaintiffs, and under such color of title, expended by said Harrington in improving said lands, together with the legal interest thereon; and this defendant asks for such other and further relief in the premises as may, to this Court, seem just and and agreeable to equity and good conscience."

The plaintiffs demurred to the whole of the said answer, except the general denial, on the following grounds:

1. That it did not state facts sufficient to constitute a ground of defence, in this, that it prayed a decree for a deed of the land in dispute, upon the showing only of a verbal contract for the purchase of said land; and that it asked payment in an action. of ejectment, for the improvements put on said land, without showing any privity between the parties, or any valid contract.

2. That it did not state facts sufficient to constitute a defence in other respects.

The demurrer was sustained by the Court, and the defendant excepted. The cause was then tried upon the issue made by the general denial. On the trial, the defendant offered to prove the same facts set up in his answer. Upon the objection of the plaintiffs, the Court refused to receive the proof, and the defendant excepted to the ruling. The plaintiffs had judgment, and the defendant appealed.

H. M. Vories for Appellant.

I. The Court below erred in sustaining the demurrer to the second defence set up in the answer, because:

First-Under our statute, where the plaintiff in an action sues to recover the possession of lands by virtue of a legal title in himself, the defendant may plead, or show by way of defence, an equitable title or right in himself; and in such case the Court will decree the legal title to the defendant upon such terms as will be just under the circumstances. Crary v. Goodman, 2 Kirnan R., 266; Tibeau v. Tibeau, 19 Missouri R., 78; Stone v. Sprague, 20 Barb. R., 509.

Second-The contract for the sale of the land to Harrington, as set up in the answer, was such a contract (the same having been partly performed by the delivery of the possession of the land to Harrington, and the making of large and valuable improvements thereon, and the payment of part of the purchase-money,) as a Court of Equity will enforce, the same not being within the Statute of Frauds. In fact, to permit the plaintiffs to avoid the contract would be to enable them to perpetrate a palpable fraud on the rights of Harrington's representatives. Story's Eq. Jur., §§ 759-764, and authorities there cited; Caldwell v. Harrington, 9 Pet., 86; Newton v. Swazey, 8 N. H., 9; Annan v. Merritt, 13 Conn., 478; Casler v. Thompson, 3 Green Ch., 59; Massey v. Me