Foster v. Maginnis

Garoutte, J. —This is an action for the specific performance of a parol contract to convey land.

Among other facts, the court found: “ Defendant verbally sold the land described in the complaint to plaintiff for two hundred dollars, which sum plaintiff then and there paid to defendant.

“ That then and there defendant agreed to execute and deliver to plaintiff a deed thereto, and plaintiff immediately took possession of said land, with the knowledge and consent of defendant, and made valuable improvements thereon.”

After a careful examination of the evidence in this case, we are satisfied that it does-not support the foregoing findings.

In the case of Blum v. Robertson, 24 Cal. 142, this court said: “It is a rule well settled that a party who claims a right to a conveyance of land under a parol or verbal contract upon the ground of part performance must make out by clear and satisfactory proof the existence of the contract alleged by him; and it is not enough that the acts of part performance proved are evidence of some agreement, but they must be unequivocal and satisfactory evidence of the particular agreement charged in the complaint.”

The terras of the contract in this case, under any aspect of tHe evidence, are vague and indefinite in the extreme. The plaintiff himself says that the defendant was to deed him all the land south of the road and fence, and there appears to be some of the tract claimed between the road and fence.

It appears this particular tract of land was bought by defendant of Mrs. Reeves, and paid for at the time other [267]tracts were purchased; and whatever promises defendant made to plaintiff as to deeding him this land were made without any consideration whatever, and partook of the nature of a gift without delivery.

But whatever the contract may have been, there is no evidence to support the finding that “ defendant sold said land to plaintiff for two hundred dollars, and which sum plaintiff then and there paid to defendant.”

And again, there is no evidence to support the finding that “the plaintiff immediately took possession of said land with the knowledge and consent of defendant, and made valuable improvements thereon.”

The fact that he moved some personal property upon the land in the nature of fence-posts and loose lumber is not a compliance with the rules of courts of equity requiring permanent and valuable improvements; and according to the testimony of plaintiff himself, the defendant never consented to his possession or authorized it in any way; indeed, there is no evidence showing that he had any knowledge of it.