Brennan v. Ford
46 Cal. 7
Cal.
1873
Check Treatment
By the Court, Crockett, J.:

This аction is to enforce the specific performance of a contract for the conveyance of land, and a demurrer to the complaint having been sustained, final judgment was entered for the defendants, from which the plaintiff appeals.

The objection that the defense of the Statute of Limitations set up in the demurrer is not well pleaded in point of , fоrm, is not tenable. The demurrer in this respect is not obnoxious to the objection commented upon in Brown v. Martin, 25 Cal. 89, and Kent v. Snyder, 30 Cal. 672. The point decided in these cases was that the defense of the Statute of Limitatiоns cannot be raised by demurrer under the general ground that the complaint does not state facts sufficient to constitute a cause ‍‌​‌‌‌​​‌‌‌‌​‌​‌​​​‌‌​‌​​​​‌‌​​‌‌‌‌‌​‌‌​​​​​​​‌​​‍of action, but must be specially set up and reliеd upon. The demurrer in this case conforms to this requirement, and specially sets up the statute as a defense. Nor is it defective under the ruling in Caulfield v. Saunders, 17 Cal. 571, in which it is held that a plea that the items of the account sued upon are “barred by time, and he pleads and relies upon the statute of the State of California entitled ‘An Act defining the time of commencing civil actions,’ approved April 22d, 1850, in bar of any recovery in said action,” is fatally defective, as stating only a conclusion of law.

The Court says: “To be available, the plea must aver the facts which bring the demand within the operation of thе statute, as that the alleged cause of action has not accrued within certain years previous to the filing of the complaint.” But it is not the office of a demurrer to set out faсts. On the contrary, all the facts involved in a de*13murrer are those alleged in the pleading demurred to, and the demurrer merely raises a question of law as to the sufficiency ‍‌​‌‌‌​​‌‌‌‌​‌​‌​​​‌‌​‌​​​​‌‌​​‌‌‌‌‌​‌‌​​​​​​​‌​​‍of the facts tо constitute a cause of action or a defense. The demurrer in this case is, therefore, sufficient in form.

The grounds of demurrer are: ‘‘"First, that it appears "by the complaint that the cаuse of action is barred by the Statute of Limitations. Second, that the complaint does not state facts sufficient to constitute a cause of action, in this: 1, that the alleged agreement is within the Statute of Frauds; 2, that there are no sufficient allegations of part performance to give jurisdiction to a Court of equity to grant relief; 3, that the terms and conditions of the allеged agreement are uncertain; 4, that the plaintiff has adequate remedy at law. Third, that there is a defect of parties plaintiff and defendant. Fourth, that the Court has no jurisdiction of the subject matter.

The defense founded on the Statute of Limitations will be first considered. The agreement on which the action is founded was entered into in the year 1863, and as no time was limited within which it was tо be performed, the law implies that it was to be performed immediately, or, at most, within a reasonable time. This action was commenced in the year 1870; and it does not appear from the complaint whether the agreement was verbal or in writing. But on demurrer, we shall consider it to have been in writing. (Miles v. Thorne, 38 Cal. 335.) In order to avoid the bar of the statute, the plaintiff alleges, first, that her grantor (with whom the contract was made) has fully performed it on his part by conveying the tract which he agreed to convey, in exchange for the tract to be conveyed ‍‌​‌‌‌​​‌‌‌‌​‌​‌​​​‌‌​‌​​​​‌‌​​‌‌‌‌‌​‌‌​​​​​​​‌​​‍by the defendants, and that the defendants entered into the possession of the tract so conveyed, and have sold portions thereof; second, that in the year 1868 a demand for a conveyancе by the defendants was made, and they then refused, *14for the first time, to make it; third, that in the year 1867 the plaintiff’s grantor, at the request of the defendants, and in execution of the agreement on his part, аnd “in consideration that said defendants would convey to said James Brennan (plaintiff’s grantor) the undivided half of one thirteenth part of said Rancho San Andreas, did grant, sell, and convey to said defendants, by particular description, the undivided half of said 'thousand-acre’ tract of land;” fourth, that in the expectation that the defendants would convey to him the interest in the Rancho Sаn Andreas, which they agreed to convey, said James Brennan “assumed to and did exercise acts of control over and possession of portions of said Rancho San Andreas, and claimed to be the owner of one undivided half of one thirteenth part thereof under said agreement.” The facts stated in the first point do not take the case out of the bar of the statute; and the authorities cited in support of it have no reference to a defense founded on the Statute of Limitations. The three remaining points will be considered together. In the carefully considered case of Love v. Watkins, 40 Cal. 547, we held that in an executory contract for the sale and conveyance of land, if the vendee has been let into the possession, and has paid the purchase money, he thereby becomes the equitable owner, for whom the vendor holds the naked, legal title in trust, and that whilst he remains in possession, with the' acquiescencе of the vendor, the Statute of Limitations does not run against him. In the case at bar it is conceded by counsel that if James Brennan had fully performed the agreement on his part, and had entеred into and continued in possession of the Rancho San Andreas under his contract of purchase, the Statute of Limitations would not bar an action to compel a conveyance of the legal title. But there is no sufficient averment in the complaint that he ever entered into the possession. The allegation that he “assumed to and did exercise acts of control over and posses-

*15sion of portions of said rancho,” cannot be considered, on the most liberal construction, to be equivalent to an averment that he had the аctual possession of the rancho, or any part of. it. If he felled a tree or erected a rod of fence on the land, this would fulfill the averment that he exercised “acts of сontrol over and possession of portions of said rancho,” but would fall far short of the actual possession of the land in a legal sense. We must assume, therefore, for the purpоses of this decision, that Brennan never had the possession. But the complaint avers that in 1867 (less than four years before the commencement of the action), at the request of the dеfendants, and in execution of the agreement, in consideration that the defendants would, convey to him the stipulated interest in the Rancho San Andreas, he conveyed to them the traсt which he had agreed to convey in exchange for the undivided interest in San Andreas. This was a complete execution of the agreement by Brennan on.his part; and ‍‌​‌‌‌​​‌‌‌‌​‌​‌​​​‌‌​‌​​​​‌‌​​‌‌‌‌‌​‌‌​​​​​​​‌​​‍if performance, or a tender of performance, by him, was a condition precedent to the right to demand a conveyance from the defendants, it results that his cause of action did not acсrue until one or the other of those events happened. There is no averment that he tendered a conveyance to the defendants at any time prior to January 31st, 1867, when he dеlivered to them the deed of that date; and we must assume that the contract was completely executed by him by the delivery of that deed. Whether a complete performance or tender by him was a condition precedent to his right to demand a deed from the defendants must depend upon the question whether the mutual conveyances were intended by the contract to be concurrent acts. It is not so expressly averred in the complaint, which states the contract in these words: “That said James Brennan would sell and convey the undivided half o£ said ‘ thousand-acre tract ’ to said defendant Ford, and that in consideration thereof said defendant Ford would and *16should sell and convey to said James Brennan the undivided half of one thirteenth part of said San Andreas Rancho.”

No time was stipulated for the performance of these acts, nor is there any provision from which it can be inferred that one was to precede the other. In such cases the law implies that they are to be performed concurrently. In the Bank of Columbia v. Hagner, 1 Pet. 455, it is said that “in contracts of this description the undertakings of the respective parties are always considered dependent unless a contrary intention clearly appears. A different construction would, in ‍‌​‌‌‌​​‌‌‌‌​‌​‌​​​‌‌​‌​​​​‌‌​​‌‌‌‌‌​‌‌​​​​​​​‌​​‍many cases, lead to the greatest injustice, and a purchaser might have payment of the purchase money enforced upon him and yet be disabled from procuring the property for which he paid it.” (See, also, Hill v. Grigsby, 35 Cal. 662, and cases there cited.)

Treating the mutual covеnants of the parties in this case as dependent, Brennan’s right to demand a conveyance from the defendants accrued on the delivery by him of his deed on the 31st of January, 1867, and assuming the agreement to have been in writing, as we must do on demurrer to the complaint, the cause of action was not barred at the commencement of the action, nor, for the reason just stated, was the contract void under the Statute of Frauds.

We deem it unnecessary to notice the other grounds of demurrer, except to say that, in our opinion, none of them are tenable.

Judgment reversed and cause remanded, with an order to the Court below to overrule the demurrer.

Mr. Justice Rhodes did not express an opinion.