Nicholson v. Tarpey

Citations

• 124 Cal. 442
• 57 P. 457
• 1899 Cal. LEXIS 1015

Syllabus

<p>Specific Performance—Lost Contract—Evidence—Declarations of Vendor.—In an action for the specific performance of a written contract for the conveyance of land, which has been lost, parol evidence must be confined to proof of the contents of the written instrument; and evidence as to the declarations of the vendor made subsequent to the date of the contract, as to what land had been sold by him, is inadmissible.</p> <p>In.—Deed with Insufficient Description—Fraud—Discovery—Statute of Limitations.—Where the complaint for spec fie perfoi manee alleges that, hy the fraud of the vendor, a deed of an insufficient quantity of land to comply with the contract of sale was, by premeditated deception, imposed upon the plaintiff, and was accepted hy him as a fulfillment of the contract, and that the fraud was not discovered until just before the action was commenced, if it appears as a fact that the plaintiff knew, more than seven years before the commencement of the action, that the conveyance was of an insufficient quantity, and what were the acreage, location, and boundaries of the tract therein described, the plea of the statute of limitations of four years is not avoided by the alleged fraud.</p> <p>Id.—Pleading of Limitations.—The statute of limitations may be properly pleaded by reference to the numbered sections, and subdivisions thereof, of the Oode of Oivil Procedure, relied upon in bar of the cause of action.</p> <p>Id.—Omission to Find upon Plea of Statute.—Where the statute of limitations is pleaded, and there is evidence in support of the plea, the omission to find thereupon is error.</p> <p>Id.—Action against Distributees of Deceased Vendor—Possession of ■-laintiff.—Where the action to enforce the agreement, to convey more land than was described m the deed was delayed more than seven years, and until after the distribution of the estate of the deceased vendor, and was brought against his distributees, so as to avoid the incompetency of the plaintiff to testif