Opinion of the Court-Sullivan, C. J.

were his own. Youmans testified that he relied on this assurance and at once took complete possession of the forty. Youmans was therefore in a position to prove and enforce the third contract as against Eagleson.

:

Counsel for appellant contends that according to the testimony of Youmans' own witnesses, Mr. and Mrs. Wolf, the alleged third contract as between Eagleson and Youmans was dependent upon Wolf's taking the remaining 120 acres of the quarter-section and giving a mortgage of $7,000 thereon, which Wolf's evidence showed that he did not care to do, and he never, either in his pleading or on the trial, alleged that he was ready and willing to perform. It must be conceded that plaintiff's evidence in each of these cases is in many respects somewhat contradictory and confused, and in particular with regard to the contract upon which at any given time they relied. But we think a fair conclusion to be drawn from the testimony of the Wolfs is that they entered into the third contract with Eagleson conditionally in the first place, conditioned on their inability to get him to perform his part of the second contract, which they would have all along preferred; in the second place, although they gave a promise for a promise in making the third agreement, there is evidence to the effect that they did not consider the making of these promises constituted the contract, but that its consummation was dependent on performance by Eagleson. For instance, Wolf was asked on cross-examination, with reference to negotiations under the third contract: "Q. You were not expecting the $1,500 at that time? A. We expected it all the time until he could make some arrangement so we would be sure of something else." We think, under the circumstances shown in evidence, Wolf was justified in repudiating the third contract and standing on the second, but this does not wholly remove the difficulty so far as the consideration for the conveyance of the Youmans' forty is concerned, if that matter be deemed to belong to the third contract. We must in that case assume that part of the consideration for Eagleson's agreement to deed Youmans the forty acres for $1,000 on mortgage was the simultaneous agreement on the part of Wolf to take the remaining 120 of the

Opinion of the Court-Sullivan, C. J.

quarter-section for $7,000 on mortgage. The lower court solved part of this problem by deducting $1,000 from the judgment against Eagleson in the Wolf case, so that upon enforcement of specific performance in the Youmans' case, requiring Youmans to give a $1,000 mortgage in exchange for deed, Eagleson would then be getting his agreed price of $50 per acre. But the question still remains: Was not the agreement for sale to Wolf part of the inducement for the terms given Youmans, and if the agreement for sale to Wolf is repudiated, is it fair to Eagleson to enforce that agreement in the case of Youmans only? There is, however, evidence to show that Eagleson himself repeatedly refused to carry out the third contract, by which he might have sold Wolf this 120 acres. If, therefore, by the enforcement of the contract with Youmans, Eagleson is placed in a less advantageous position than he would be if he had consummated the same contract with Wolf also, it would seem to be wholly the result of his own conduct and of which he can hardly be heard to complain.

It appears to us that the trial court has approximated an equitable adjudication out of the tangle of contractual relations in which the parties to these actions were involved, and as there is some evidence to support his findings, they will not be disturbed by this court, under the application of the familiar rule, where the evidence is as conflicting and unsatisfactory as it is in these cases.

Counsel for appellant contends that it is not reasonable to suppose that Eagleson would have made an agreement to sell the quarter-section in question to Wolf and Youmans entirely on mortgage and without any cash payment, since neither of them were men of financial means or standing. But it must be remembered that Eagleson had already received a large part of the consideration for such a transaction by the quitclaim deed which Wolf had given him. It is also objected that the Youmans' forty, in regard to which specific performance was prayed in the complaint, was not identified on the trial, and that there is therefore no evidence on which to base a decree for specific performance. On referring to the record, it appears that Youmans on the witness-stand was

Opinion of the Court-Sullivan, C. J.

unable to give a description of the forty in question by legal subdivisions, but that at the request of counsel he drew a sketch of the location of the forty with reference to the other subdivisions of the half section, which sketch was admitted in evidence as Plaintiff's Exhibit "A." We must assume, therefore, in accordance with the well-known rule, that the trial court based its finding as to the identity of this forty acres upon satisfactory evidence. There is also a disagreement between plaintiff's witnesses in the Youmans case as to the term for which the mortgage was to run, but there is some evidence to support the allegation of the complaint that the time was to be three years.

It is contended by counsel that in the Wolf case the findings of the court cover only the allegations of the complaint, and that the affirmative allegations in defendant's counterclaim, upon which affirmative relief was asked, have been entirely disregarded. These allegations had reference to specific items of damage sustained by defendant by reason of alleged failure of plaintiff to carry out the first or written contract and the alleged conversion of the personal property by plaintiff. As we have already observed, the court found in its seventh finding of fact, "That the said relinquishment and rescission of the contract mentioned in the first paragraph hereof was understood between the parties thereto to be a settlement of all accounts between plaintiff and defendant growing out of said contract." This finding is very explicit and comprehensive, and it is ultimate in its nature, since it declares that the rescission of the first contract was understood between the parties to effect a settlement of all matters between them growing out of the first contract. Having found the ultimate fact which disposed of defendant's entire demand for relief under the provisions of the first contract, it was not necessary for the court to make the subsidiary or intermediate findings which might lead up to it. (Fouch

v. Bates, 18 Ida. 374, 110 Pac. 265; Jones v. Vanausdeln, 28 Ida. 743, 156 Pac. 615.)

A number of California cases are cited by counsel to the effect that in an action for specific performance the complaint

Points Decided.

must allege affirmatively adequacy of consideration and the mutuality of the contract as a basis for a decree. These decisions appear to be based upon a provision of the California Civil Code (sec. 3391), which provides that specific performance cannot be enforced against a party to a contract if he has not received an adequate consideration therefor, and if it is not shown to be as to him fair and reasonable. We do not know of any provision of this sort in our Idaho statutes, or of any such formal rule of practice in this state. As a matter of fact, the proof showed that the price of $50 an acre for the land covered by the Youmans contract was certainly not inadequate, since Eagleson had sold 160 acres of adjoining land just about that time for the same price, and there was evidence to the effect that the greater part of the improvement made on the whole half section had been made on the quarter-section so sold.

From an examination of the whole record, we find no reversible error, and conclude accordingly that the judgment of the lower court must be affirmed. Costs awarded to respondents.

Budge and Morgan, JJ., concur.

(May 27, 1916.)

CHARLES B. SMITH and BENJAMIN MOYSES, Appellants, v. J. B. STANFIELD et al., Respondents.

[158 Pac. 239.]

REAL ESTATE-ACTION TO QUIET TITLE-FINDINGS OF FACT-SUFFICIENCY OF EVIDENCE-JUDGMENT MODIFIED.

1. In an action to quiet title to real estate, where the court fails to find upon certain material issues, and to quiet title in the proper parties, the cause will be remanded for further proceedings.

2. Held, that the evidence is sufficient to support the finding of facts.

3. Judgment modified and affirmed.

[As to right of holder of equitable title to bring suit to quiet title against holder of legal title, see note in Ann. Cas. 1913B, 89.]

Argument for Appellants.

APPEAL from the District Court of the Fourth Judicial District, in and for the County of Elmore. Hon. C. O. Stockslager, Judge.

Action to quiet title to certain real estate. Judgment quieting title in defendants. Modified and affirmed.

Cavanah & Blake, for Appellants.

If the village of Mountain Home had the right to use this land for street purposes (which we contend it did not, under the evidence), its right did not commence until it opened the same and used it for street purposes. (Thiessen v. Lewiston, 26 Ida. 505, 144 Pac. 548.) The defendant cannot have decreed to him an interest of a third party. (32 Cyc. 1343.)

If the village of Mountain Home has a paramount right to the use of the strip of land for street purposes, as the defendant Stanfield's counsel attempted to establish in the court below, then he was in possession of this land by permission from the village.

"Possession by permission or license from the owner is not adverse and cannot ripen into title, no matter how long continued or however exclusive it may be." (Omaha & Grant Smelting etc. Co. v. Tabor, 13 Colo. 41, 16 Am. St. 185, 21 Pac. 925, 5 L. R. A. 236; Jensen v. Hunter, 5 Cal. Unrep. 83, 41 Pac. 14; Davis v. Devanney, 7 Ida. 742, 65 Pac. 500.)

"Occupation, when in common with the public generally, is not such exclusive possession as will constitute the basis of a title of adverse possession." (Tracy v. Norwich etc. R. Co., 39 Conn. 382; Gittings v. Moale, 21 Md. 135; Boulo v. New Orleans etc. R. Co., 55 Ala. 480; Hittinger v. Eames, 121 Mass. 539; Trotter v. Newton, 30 Gratt. (Va.) 582.)

Where a party recognizes title or paramount interest to be in a third person, his adverse possession ceases to be adverse, no matter how hostile it may previously have been. (Miller v. Keene, 5 Watts (Pa.), 348; Lamb v. Foss, 21 Me. 240.)

Payment of taxes must be shown in order to establish title by adverse possession. (Brose v. Boise City Ry. etc. Co.,