Simpson v. Applegate

Hayne, C. —Ejectment. The plaintiff claims under a United States patent. The defendant set up an equitable defense, and prayed for a conveyance from plaintiff of the legal title. The court below gave judgment for the plaintiff, and the defendant appeals. The case comes up on the judgment roll.

[343]Certain points are made by the respondent as to the construction of the findings, but for the purposes of this opinion we shall assume that the finding that the plaintiff was “ the owner ” of the premises at the commencement of the action is a conclusion of law within the rule laid down in Levins v. Rovegno, 71 Cal. 273.

The facts as disclosed by the findings are as follows: — The appellant and respondent were respectively in possession of adjoining pieces of public land. In 1862 the respondent made a parol agreement to sell to the appellant the tract in controversy for seventy-five dollars. This sum was paid, and the appellant took possession of the property and improved the same, thus bringing himself fairly within the rule as to specific performance of partially executed parol agreements for the conveyance of real property. But no deed was made. Afterwards the respondent applied for a patent from the United States for a tract which included the premises in controversy. This was with the knowledge and acquiescence of appellant, who drew up the declaratory statement, at respondent’s request. What then occurred is stated by the findings, as follows:—

“Thereafter, and within the time allowed by the preemption laws to make final proof and payment, plaintiff applied to defendant to go with him to said land-office, as a witness for him, to make proof of his right to his said land. The defendant then explained to plaintiff that he could not become such witness while there existed any contract or agreement between them for a conveyance by plaintiff to defendant, or to any one else, of any part of the land so to be pre-empted; and further, that the plaintiff himself could not take the oath prescribed by law, while any such contract or agreement existed. And that before defendant could become such witness, or plaintiff himself could take such prescribed oath, it was indispensable that all existing contracts and agreements in respect to a conveyance of any part of [344]