Nicholson v. Tarpey

Citations

• 70 Cal. 608
• 12 P. 778
• 1886 Cal. LEXIS 856

Syllabus

<p>Specific Performance — Contract for Sale of Land—Inadequacy of Consideration—Waiver. —A vendor, under a contract for the sale of land, by accepting the purchase-price agreed to be paid therefor, and delivering a deed in which a portion of the land was fraudulently omitted, though supposed by the vendee to include the whole, waives his right to object to a specific performance of the contract on the ground of the inadequacy of the consideration.</p> <p>Id. — Secondary Evidence of Contract—Deposition—Possession of Contract by Adverse Party. —The action was brought by a vendee for the specific performance of a written contract for the sale of land. Prior to the trial, the deposition of a witness was taken, who testified, without objection, to the terms of the contract. At the trial, the defendants objected for the first time to the evidence contained in the deposition, on the ground that secondary evidence of the contract could not be given without proof of the loss or destruction of the original. The plaintiff thereupon showed that the contract was executed in duplicate, one copy of which had been delivered to him, and the other retained by the vendor, the ancestor of the defendants, and that his copy had been subsequently delivered to the vendor, and destroyed by him. The copy retained by the vendor was not accounted for, nor did it appear that any notice to produce it in court had been given. One of the defendants had the copy in his possession, and could have produced it. Held, that the defendants could not object to the evidence.</p> <p>Id.—Declarations of Vendee to Assessor—Evidence of when Inadmissible— Adverse Possession.—In such an action, declarations made by the plaintiff to the assessor, at the time the land in question was assessed, and in the absence of the defendants, to the effect that he was the owner of the land, are not admissible in support of his claim to the adverse possession thereof, or to show that the assessment was made to him.</p>