Day v. Cohn

McKee, J. The contention that the decree in this case is erroneous, because it is based upon conclusions of law not supported by the findings, and drawn from findings not sustained by the evidence, is not maintainable.

The action was to enforce the specific performance of a parol agreement to convey the legal title to a town lot.

The record of the case shows that the plaintiff proved the agreement as averred in his complaint; that under the agreement he entered into possession of the lot, by and with the consent of his vendor, and expended several hundred dollars in building upon it a dwelling-house and out-houses, which were occupied by himself and his tenants; and that, during his occupancy, he made occasional payments upon the purchase price of the lot, which were accepted by the vendor on account, and the [509]balance he tendered and demanded his deed; and he still was ready and willing to pay what was due, but the defendant, to whom the lot had been conveyed by the vendor, refused to accept the money or to execute a deed.

Possession of a lot of land under a parol contract for the sale thereof, the expenditure of money in the improvement thereof, and partial payments of the price stipulated to be paid for it, constitute part performance of the contract, which takes it out of the statute of frauds (§ 1972, Code Civ. Proc.), and entitles the vendee to specific performance of the contract itself, unless there are circumstances in the case which would render it inequitable for a court of equity to grant relief.

There is nothing in the circumstances of the case which shows laches on the part of the plaintiff in the performance of the agreement. Ho definite time was named for the payment of the price to be paid. By the terms of the agreement the money was to be paid from time to time “as the plaintiff earned the same.” Time, therefore, was not of the essence of the agreement, nor was it made so by notice or demand for the payment of the money at any particular time. The vendor was content to let it remain bearing interest, and he always accepted any payments which were made by the plaintiff in performance of the agreement. The last of such payments was made in 1881, two years before the. commencement of the action in hand. There was, therefore, no repudiation or abandonment of the contract by the plaintiff; and as he was all the time, until the conveyance to the defendant, in the actual possession of the lot under the contract, his equitable right to compel performance of it was not barred by the Statute of Limitations. (Love v. Watkins, 40 Cal. 547; Willis v. Wozencraft, 22 Cal. 608; Millard v. Hathaway, 27 Cal. 119.)