Bruck v. Tucker

Citations

• 42 Cal. 346

Syllabus

<p>Title as Detense, after General Issue Pleaded.—Where, in an action of ejectment, the defendant pleads the general issue and then sets up title in himself, the plea of title amounts to nothing whatever, and may be omitted.</p> <p>Improper Defense in Ejectment. — B. sued T. in ejectment,' claiming title under a devise of Bale; T. plead the general issue and interposed another defense setting out an alleged agreement by Bale, before his death, to convey the premises (as soon as a Government surveyor could be obtained to survey the land) to K., the grantor of T„ provided K. would hind himself to reserve certain timber for Bale, not to keep wild cattle on the place, and to do all the work he could at Bale’s sawmill at current wages. Held, first, that as a defense at law the pleading is not to be supported; second, that as a defense in equity it was insufficient, because it failed to show by direct and proper averment that the consideration Bale was to receive was adequate in amount, and not disproportionate to the value of the lands to be conveyed..</p> <p>Equitable Defense in an Action at Law.—In setting up an equitable defense in an action at law the defendant becomes an actor and the defense interposed a pleading in equity, the sufficiency of which—in matters of substance, though not in point of mere form—is to be determined by the application of the rules of pleading observed in Courts of equity, when relief is sought there in cases of like character.</p> <p>Suit tor Specific Performance of Agreement to Convey Lands.— In a suit for a specific performance of an agreement to convey lands, the agreement must he one which in all its features appeals to the judicial discretion as being fit to be enforced in specie, as having been obtained without any intermixture of unfairness.</p> <p>Construction of Will a Question of Law for the Court. — The construction of a devise, like that of a contract in writing, is always a matter of law, and is therefore never to he submitted