Manning v. Franklin

Works, J. This is an action of unlawful detainer. The court finds the facts tending to show under what claim of right the defendant was in possession as follows: “That in the month of February, A. D. 1886, the house and lot of the defendant having been washed away by the Los Angeles River, that plaintiff, then residing upon the south half of lot 1, block V, of the Alviso tract, in the city of Los Angeles, represented to the defendant that he, plaintiff, was solitary, old, and infirm, and was liable at any time to attacks of sickness, and proposed to defendant that he, defendant, should erect a dwelling-house on a part of said lot, and should reside with his family therein, and agreed with defendant that in consideration of the erection of such building, and the payment of one half the taxes, state, county, and municipal, that might thereafter and during the continuance of said agreement be levied and assessed upon said half of lot 1, and of one half of the charge for water on said premises during said agreement, and in consideration that defendant should care for plaintiff in sickness, he, defendant, might occupy said house, erected by defendant on said premises, during the natural life of plaintiff; that said agreement was verbal and never reduced to writing.”

The court also found that the defendant ha,d complied [207]with the terms of the contract on his part, and constructed a dwelling-house on the property, and was residing thereon.

The plaintiff in his complaint treats the defendant as a tenant at will, and alleges that he had given him notice to quit, as required in such cases, and the court so finds.

The defendant contends that by the contract, if in writing, he would have been entitled to a life estate in the lands, and that by taking possession and making the improvements the verbal contract was taken out of the statute of frauds and had the same effect.

The court below found for the plaintiff, and gave judgment accordingly. The defendant appeals on the judgment roll.

There is no question as to the making of the contract and its performance. There is some ambiguity in one of the findings as to the care of the plaintiff by the defendant in times of the former’s sickness, but we regard it as sufficient to show a compliance with the" contract in that respect. The point made and relied upon is, that the contract was void. As we understand the position of counsel for respondent, it is, that the contract was a lease, and as such was void under sections 1091 and 1624 of the Civil Code, and sections 1971 and 1973 of the Code of Civil Procedure, that the part performance found could not take the case out of the statute of frauds, and that a specific performance could not be enforced, because a part of the consideration on the part of the defendant was personal services to be rendered in the future. In our judgment, neither of the last two questions arise in the case. This is in no sense a lease of the property, but a sale of a life estate therein.