Arguello v. Edinger

Citations

• 10 Cal. 150
• 1858 Cal. LEXIS 202

Syllabus

<p>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.</p> <p>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.</p> <p>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.</p> <p>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 tho 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.</p> <p>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.</p>