Calanchini v. Branstetter
Before: Belcher
Synopsis
Specific Performance — Verbal Contract of Sale — Statute of Frauds'—Part Performance. —A verbal contract fertile sale of land is taken out of tile operation of the statute of frauds, and will be specifically enforced, when there has been a part performance of the contract by the taking of actual possession of the land by the vendee with the consent of the vendor, or by the making of valuable improvements upon the land on the faith of the contract.
Id.—Mutuality of Contract — Option and Election of Vendee.— The general rule that contracts of sale must lie mutual, or courts of equity will not enforce them, is subject to the exception that a contract for the sale of real estate at the option of the vendee only, upon election and notice, may be specifically enforced; and tile refusal of the vendor to accept the purchase-money will not destroy the mutuality, though the vendee could thereupon withdraw his election.
Id. — Oral Agreement as to Temporary Division Line — Option to Purchase —Rights of Assignee. — A verbal contract between adjoining owners of land, providing that if a division line temporarily agreed upon should be found incorrect by subsequent survey, the owner who should occupy and clear the land of the other up to the agreed line should have the option to purchase the same at its value when uncleared, or to claim payment of the cost of clearing, as he may elect, may be specifically enforced by the assignee of the owner having -the option if the land was possessed, cleared and improved by his assignor, and the assignee has tendered payment and demanded a conveyance of the land.
Id. — Time fob. Exercise of Option — Running of Statute of Limitations.— A cause of action for the enforcement of such contract does not accrue so as to put the statute of limitations in motion until the true line is determined, and it is known which one of the parties is called upon to exercise his option, and to make the election provided for. Id. — Laches — Acquiescence in Delay.—No such laches is imputable to the party seeking specific performance of such contract as will bar his right thereto by reason of a delay of more than three years before any attempt to ascertain the true line, and of more than four years before suit for specific performance, if no time was fixed by the contract for making the proposed survey, and the burden of making it was not cast upon either of the contracting parties, and both of them acquiesced in the delay as to the ascertainment of the true line.
Belcher, C. C. This is an action to enforce the specific performance of an oral agreement for the sale of laud.
The land in controversy is a strip containing about eight acres, which lies along the south side and is a part of a certain forty-acre government subdivision of land in Humboldt County.
The facts of the case, as found by the court, and undisputed, are as follows: One Baldwin owned the forty-acre tract above mentioned, and one Chamberlin owned the forty-acre tract adjoining it on the south. The line dividing their lands was undetermined and uncertain, and they disagreed as to where the true line should be located. Thereupon, in the month of July, 1882, they entered into an oral agreement that a line commencing at an agreed point on the east should be extended west through their lands, and that each owner should hold, possess, and improve up to that line; and if it should be [251]determined by a subsequent survey that the said line was not the true line dividing their respective tracts, but was too far north, then Chamberlin was to pay Baldwin the then value, in its uncleared state, of all the land lying between the temporary and the true line, or Baldwin was to pay Chamberlin the cost of clearing the same, as the latter might elect; and if the said line should be too far south, then Baldwin was to have the same option in regard to purchasing or receiving pay.
Immediately after making this agreement, Chamberlin took possession of the land in controversy, claiming a right to its possession under the agreement, and also claiming that it was a part of his forty-acre tract, and that the temporary line agreed upon was the true line. Under such claim of ownership, and also relying upon the said oral agreement, he cut the brush from the land and constructed a small ditch thereon at a cost of about twenty-five dollars per acre.
Subsequently, Baldwin conveyed his tract to Rachael Branstetter, who thereafter conveyed it to the defendant; and both took with notice of the before-mentioned agreement. And in July, 1884, Chamberlin conveyed his tract to the plaintiff, and placed him in possession of all the land in controversy here.
At no time did Baldwin or defendant or his grantor tender to Chamberlin or plaintiff a deed of the land in controversy, or call upon Chamberlin or plaintiff to exercise the option of paying for the land or receiving pay for clearing the same; nor did Chamberlin, at any time, or plaintiff, prior to December 27, 1886, ever elect to pay for the land and receive a deed therefor; nor did the parties mutually determine, or attempt to determine, by agreement, the true boundary line dividing their tracts. The defendant never admitted that the agreement between Baldwin and Chamberlin was as above stated, and always claimed that Baldwin only agreed tc pay for clearing the land, while Chamberlin and the plaintiff, at all
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