Gibbons v. Yosemite Lumber Co.

RICHARDS, J.,

pro tem.

The following portion of the opinion of the district court of appeal is adopted as correctly stating the facts of this ease:

“This case was formerly before the Supreme Court (172 Cal. 714 [158 Pac. 196]). The judgment of the superior court was reversed upon the ground that the finding ‘that plaintiff is the owner of the land’ was unsupported, the action being to quiet title. However, the Supreme Court said: ‘It may be that there has been such partial performance of an oral contract to convey as would meet the defense of the statute of frauds, and that the plaintiff could establish a right to have the agreement specifically enforced. But the pleadings are not so framed as to present the issues embraced in an action for specific performance. ... If the plaintiff desires to assert his right to have the legal title conveyed to him, his only course is to seek his relief by appropriate pleadings directed to that end, either in a new action or by application to the court below for leave to file an amended complaint.’ Accordingly, plaintiff by leave of the trial court did amend his complaint and he obtained judgment in harmony with the prayer thereof. The trial court found that on or about the first day of January, 1888, John L. Ivett, who was then the owner of the forty acres herein involved, entered into an oral agreement with plaintiff for the purchase of said property upon the following terms and conditions: That plaintiff should forthwith enter into possession thereof, take and use the same for his own benefit, build thereon and occupy it with his family, and for a period of two years keep off of all the grazing land of said Ivett trespassing sheep and cattle on their way to and

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from the mountains, and that upon the work and labor being done by Gibbons, Ivett would convey to him said forty acres of land; that the value of said land was not in excess of one hundred dollars; that the reasonable value of said services of plaintiff exceeded said amount; that the annual injury that would have been caused to Ivett’s land on account of said trespassing would be in excess of five hundred dollars had it not been for plaintiff’s said services, and that the land mentioned in 1888 and for many years thereafter was adapted to and fit for no other than grazing purposes. The court further found that plaintiff took possession of said forty acres in 1888, erected valuable improvements thereon at his own expense, moved on to the property with his family, and ever since said time has continued to live thereon and use the same to the exclusion of all other persons; that the use made by him has been for grazing purposes and according to the custom of the country in and near said land; that plaintiff performed all the terms and conditions of said agreement by him to be performed; that John L. Ivett died on or about November 9, 1890, without having made any conveyance to plaintiff; that subsequently Sophie A. Ivett, now Sophie A. Leland, became and ever since has been the administratrix of his estate; that on October 24,1911, Yosemite Lumber Company, a corporation of Nevada, the predecessor in interest of all of the other defendants other than said administratrix, acquired the record title to the property in question with other land formerly a part of the Ivett estate, and that the