46 Cal. 7 | Cal. | 1873
This action 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 , form, 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 Limitations 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 relied 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 the 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 facts. On the contrary, all the facts involved in a de
The grounds of demurrer are: ‘‘"First, that it appears "by the complaint that the cause 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 alleged 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 to 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 conveyance by the defendants was made, and they then refused,
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 covenants 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.