Connolly v. Hingley

Hayne, C. Ejectment; judgment for plaintiff; defendant appeals.

Both parties claim through one Chapman. The defendant claims to be in possession under a contract of purchase from Chapman made in November, 1875. This contract provided that defendant should pay for the property the sum of one thousand dollars, as follows: $100 cash on the execution of said instrument; [643]$750 in sixty monthly installments of $12.50 each, payable on the first day of each month, and $150 on the first day of November, 1880. Of this sum he paid only $437.50. His last money payment was in 1877, and there was allowed him for a deficiency in fencing a credit of $25 in 1879. These facts are established by the findings, which are sustained by the evidence. The burden was clearly upon the defendant to sustain the allegations of his equitable defense, and having failed to do so, the finding was properly against him. (Leviston v. Ryan, 75 Cal. 294; Speegle v. Leese, 51 Cal. 415.) In 1879 he removed with his family to the Sandwich Islands, where he remained until 1887, when he returned to California, and after several months’ sojourn in different places, reentered upon the land.

The plaintiff claims under a deed from Chapman made in 1880. He was in possession under this deed from about the time it was made until the defendant’s entry in 1887. This is expressly found; the finding is not unsupported by the evidence; and there is no sufficient specification attacking it.

It is apparent that the defendant can have no greater right against the plaintiff than he has against Chapman. And so far as the possession is concerned, he has no equity against Chapman, because he was in default under his contract, without excuse. As was said in Hannan v. McNickle, ante, p. 122, which is similar in principle: "The performance of his contract is an essential feature of any equitable defense on his part.”

Defendant relies, however, upon an extension of time. In 1879, being then in default, he asked Chapman for an extension, and the latter replied: “ If you pay me in two years, all right; and if you don’t pay me in two years, that will settle it.” There was no consideration for this verbal promise; and, assuming that it would be a waiver of delay, it was not a valid alteration of the written contract. (Civ. Code, secs. 1607, 1608.) Furthermore, the [644]