Boyd v. Brinckin

Sharpstein, J.: The complaint in this case is in the usual form of complaints in ejectment. The defendant answered, and by way of cross-complaint alleged that he was induced to settle upon the land sued for, by a circular issued and distributed by the Central Pacific Railroad Company, which invited people to settle and make improvements upon its lands, promising those who should do so, that they should be preferred as purchasers when the lands should be offered for sale. After settling upon the land, and before the same was offered for sale, defendant filed an application to purchase said land, in the office of the company, as he was directed to do by said circular. He alleges that he has made improvements on said land of the value of $2,500. The company in 1875 fixed the price of said land; and soon afterward sold and conveyed it to the plaintiff, who at the time knew that the defendant had settled upon and improved and was residing on said land, and also knew of the circular issued by said company, and of the application of defendant to purchase said land. The defendant did not know that the price of said land had been fixed, nor that plaintiff had purchased it, until the month of July, 1877. On or about the first day of January, 1878, the defendant tendered to plaintiff the sum which he paid for the land, and demanded a deed thereof from him. The plaintiff refused to accept the tender or to give a deed. Defendant avers his readiness to pay said sum, and brings it into court. Upon these and the usual formal allegations, he asks that the plaintiff be compelled to convey said premises to him, defendant.

To this cross-complaint the plaintiff demurred, on the ground that it did “ not state facts sufficient to constitute a defense to said action, or a cause of action against the plaintiff.” The demurrer was sustained, and a judgment entered in favor of plaintiff, from which the defendant appeals to this Court.

[429]If the allegations of the cross-complaint are sufficient to entitle the defendant to a judgment for specific performance, it was error to sustain the demurrer. Those allegations, as we construe them, are to the effect that the railroad company, being the owner of the land described in the plaintiff’s complaint, offered to any one who would settle upon and improve it, to sell it to such person as soon as the company should fix a price upon the same, at the price so fixed. The defendant accepted that offer, by settling upon and improving said land, and he notified the company of his acceptance by filing in its office an application to purchase, as soon as the price should be fixed. If we have here an offer on the one side, and an acceptance on the other, then we have a contract before us which a Court of Equity might decree a specific performance of.