Foster v. Maginnis
Citations
- 89 Cal. 264
- 26 P. 828
- 1891 Cal. LEXIS 808
Syllabus
<p>Specific Performance — Parol Contract — Part Performance. — A vendee claiming the right to a conveyance of land under a parol contract, upon the ground of part performance, must make out by clear and satisfactory proof the existence of the contract alleged by him; and it is not enough that the acts of part performance proved are evidence of some agreement, but they must be unequivocal and satisfactory evidence of . the particular agreement charged in the complaint.</p> <p>Id. —Improvements. — The fact that the vendee moved some fence-posts and lumber upon the land is not such a part performance of the contract as will entitle him to its specific enforcement.</p> <p>Id. —Acts of Part Performance. — To entitle a vendee of a parol contract for the conveyance of land to a specific performance, on the ground of part performance, the acts of part performance must have been done by the vendee, with the consent and knowledge of the vendor, and in pursuance of the contract, and with a design of carrying the same into execution.</p> <p>Id. — Statute of Frauds — Equitable Fraud.—Equitable fraud is the basis of an action to enforce a parol contract for the sale of land on the ground of part performance; that is, fraud as a necessary consequence, if the vendor were allowed to set up the statute of frauds as a defense, so as to secure for himself the benefit of the purchaser’s acts of part performance.</p>
How courts have described this case
Verbatim parenthetical descriptions written by other courts when citing this decision. Ranked by citation-network relevance.
- noting that a notice of appeal ordinarily acts as a supersedeas even if the appeal is ultimately determined to be jurisdictionally defective
- noting that the notice of appeal “acted as supersedeas and deprived the trial court of the power to affect the judgment appealed” (punctuation omitted)
- directing that, on remand, “when the trial court considers anew the question of attorney fees under OCGA § 9-15-14, it should not award [Husband] any attorney fees incurred in connection with proceedings in [the appellate court] (whether in this appeal or previous appeals
- “When an attempt is made to appeal an interlocutory order without following the statutory requirements of OCGA § 5-6-34 (b
- where a notice of appeal has been filed, the trial court is thereafter “deprived of the power to affect the judgment appealed”
- “By filing a notice of appeal from the initial contempt order, [the appellant] triggered an automatic supersedeas of that order.” (emphasis added)
Source: CourtListener parenthetical corpus (CC0).
Judges: Garoutte
Read full opinion on CourtListenerSourced from CourtListener / Free Law Project (CC0).
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