Hough v. Waters

By the Court, Shafter, J.: This is an action to compel the specific performance of a contract to convey. The defendant, Catharine Waters, alleges in her answer that she brought an action of ejectment against the plaintiff some two years prior to the commencement of this suit, to recover the premises included in the alleged contract to convey, and that Hough set up the said contract as a defense in that action, ánd that the contract was denied by special replication,—that the case was thereafter tried and judgment recovered by Waters for the possession of the land, which j udgment is now in full force.

It appears from the record that-the equitable defense set up in Waters v. Hough was withdrawn by consent before the trial.

The question presented is whether the judgment in favor of Waters, in the action of ejectment, estops Hough from maintaining this action for specific performance.

We do not consider the question an open one in this State. The point was directly presented in Lorraine v. Long, 6 Cal. 452, and it was held that although a party may set up an equitable defense to an action at law he is not confined to that proceeding. He may let judgment go at law and file his bill in equity for relief. And it was further considered, while the Practice Act enlarges the field of remedy, that it does not take away pre-existing remedies by implication. This decision has been acquiesced in and acted on as settled law by the profession from the time it was rendered ; and so far as we are advised, its correctness has never been the subject of judicial doubt. To reverse this decision at this late day would involve a sacrifice not of this case merely, but presumably of many others instituted or to be instituted upon the faith that the decision would be adhered to. If the rule established by the case is found to be of evil consequence, the Legislature can correct it. The case of Morrison v. Wilson, 13 Cal. 497, and Gray v. Dougherty, 25 Cal. 277, are not opposed to Lorraine v. Long, when rightly understood. They were not [312]intended to obliterate the established distinction between legal rights and remedies and" equitable rights and remedies, nor in any manner to affect the rale in question.

Judgment reversed and new trial ordered.

Neither Mr. Chief Justice Cueeey nor Mr. Justice Sawyer expressed any opinion.