Francis v. Colendich

California Court of Appeal Jun 15, 1961 No. Civ. 10032Published

Before: Schottky

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Holding. The court held that the defendant was the equitable owner of the property because the oral contract for purchase was taken out of the statute of frauds by part performance, and the plaintiff was not a bona fide purchaser due to the defendant's open and notorious possession.

Issues

Whether the evidence supports the finding that the defendant is the equitable owner of the property.
Whether the failure to make specific findings on the statute of limitations, statute of frauds, and laches constitutes reversible error.
Whether the defendant's possession of the property constitutes sufficient part performance to satisfy the statute of frauds.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence does support the finding that the son, Nick, purchased the property; that he and his mother, the respondent, entered upon the property and were in possession of it over the years; and that the property was fenced.”

SCHOTTKY, J.

Elgin Francis has appealed from a judgment in favor of Rafalita Colendich quieting title to certain real property.

Francis brought this action to quiet title to three parcels of land in Calaveras County. Rafalita Colendich denied the claim of Francis and by cross-complaint sought specific performance of an oral agreement entered into by her son, Nick (her predecessor in interest), as purchaser, and Samuel Clifton and his wife, Amelia B. Clifton, for the purchase of a parcel of land 100 feet by 275 feet and a declaration that Elgin Francis held the property in trust for her. It was stipulated that the parcel Rafalita claims is the same as that claimed by Francis.

It appears from the agreed condensed narrative of all oral proceedings that Nick purchased a lot from the Cliftons in 1937 and received a deed for it dated September 25, 1937. Thereafter, but prior to November 9, 1939, Nick allegedly entered into an oral contract for the purchase of a second parcel of land some 100 feet by 275 feet adjoining the rear of his property. A receipt was introduced in evidence which was dated November 9, 1939, and which acknowledged the receipt of $125 from Nick for land. A check also dated November 9, 1939, which was payable to Mr. and Mrs. Sam

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Clifton was also introduced. This check bore the notation: “Paid in full for lot 100 x 275.” Mrs. Clifton acknowledged the receipt and an endorsement on the check was in her handwriting. The parcel of land was surveyed. Both the surveyor and Mr. Clifton told Bafalita that they were surveying the additional ground her son had purchased. Shortly after the survey was completed the property was fenced. Nick and Bafalita occupied the property. Nick was killed in combat in Europe in 1944. Bafalita continually occupied and used the property. She was Nick’s mother and heir.

In August 1947 Francis acquired a deed to the property from some people named Worley, who in turn had received a deed from Amelia Clifton, dated December 11, 1946, who had succeeded to her husband’s interest in it.

In the fall of 1951 Francis cut the fence and entered upon the property. He was requested to leave. He did so and then brought this action.

Francis v. Colendich

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SCHOTTKY, J.

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