82 Cal. 642 | Cal. | 1890
Ejectment; judgment for plaintiff; defendant appeals.
Both parties claim through one Chapman. The defendant claims to be in possession under a contract of purchase from Chapman made in November, 1875. This contract provided that defendant should pay for the property the sum of one thousand dollars, as follows: $100 cash on the execution of said instrument;
The plaintiff claims under a deed from Chapman made in 1880. He was in possession under this deed from about the time it was made until the defendant’s entry in 1887. This is expressly found; the finding is not unsupported by the evidence; and there is no sufficient specification attacking it.
It is apparent that the defendant can have no greater right against the plaintiff than he has against Chapman. And so far as the possession is concerned, he has no equity against Chapman, because he was in default under his contract, without excuse. As was said in Hannan v. McNickle, ante, p. 122, which is similar in principle: "The performance of his contract is an essential feature of any equitable defense on his part.”
Defendant relies, however, upon an extension of time. In 1879, being then in default, he asked Chapman for an extension, and the latter replied: “ If you pay me in two years, all right; and if you don’t pay me in two years, that will settle it.” There was no consideration for this verbal promise; and, assuming that it would be a waiver of delay, it was not a valid alteration of the written contract. (Civ. Code, secs. 1607, 1608.) Furthermore, the
Ho demand was necessary to make the defendant’s possession tortious. At the time of the entry complained of, he had not been in possession under the contract for several years. The court finds that when he went to the Sandwich Islands, he “ abandoned ” possession of the lots. We are not prepared to say that this finding is not sustained by the evidence. All that defendant says about it is, that he “ did not leave the lots vacant,” and that he “ rented the property for a year, when I went away, to J. R. Palmer.” But if we assume that Palmer went into possession, it does not appear how long he remained so. Waiving this, however, and assuming, in favor of defendant, that he did not “abandon” the possession, it sufficiently appears, as above stated, that plaintiff was in possession from the time of the deed under which he claims until the entry of defendant in 1887. Under these circumstances it seems clear that, whatever may be the rule as to demand upon a vendee
A number of exceptions were taken during the trial, but no argument is made in support of any of them, and consequently they must be held to be waived.
We therefore advise that the judgment and order appealed from be affirmed.
Foote, C., and Vancliee, C., concurred.
For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.