Hawke v. Ellwanger

CARY, P. J.

Plaintiff Grace Hawke brought this action in ejectment. Defendant answered denying the allegations of the complaint. He also set up affirmatively that plaintiff’s father had for some years prior to the institution of this action been the record owner of the property; that he and defendant had entered into an agreement whereby defendant was to purchase the property; that the deal had gone into escrow, defendant depositing twenty-five dollars

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and delivering the necessary mortgages, etc.; that pursuant to such agreement defendant entered into possession of the land and at all times since had been in the open and exclusive possession thereof; that thereafter plaintiff’s father repudiated the agreement and attempted to convey the property to plaintiff by recording a deed running to her. The court found in accordance with the allegations of the complaint and, with reference to the affirmative allegations of the answer, found that there was. no agreement between plaintiff’s father and defendant regarding the sale of the property; that defendant did not enter into possession of the property pursuant to any such agreement, and that defendant had merely deposited twenty-five dollars in escrow, together with notes, mortgages, etc., which plaintiff’s father had refused to accept. On these findings the court gave judgment for the plaintiff.

As neither the plaintiff nor her father ever signed any writing regarding the alleged agreement for the purchase of the property the principal point here involved is whether the facts of the transaction were such as either to take it out of the statute of frauds or to estop plaintiff from relying upon that statute.

Appellant contends (1) that under the facts in the case at bar plaintiff is estopped to rely upon the statute of frauds because she allowed the property to stand in her father’s name, her father had control of the property, her father led defendant to believe that he wanted to sell the property and on the strength of such representation defendant signed the escrow papers and went into possession and (2) that defendant’s taking possession of the property is such part performance as to take the transaction out of the statute.

Respondent contends that even though it be conceded that defendant had the same rights against plaintiff regarding the property that he had against her father, yet he had none against her father and therefore can have none as against plaintiff.