Conrad v. Lindley

| Cal. | Apr 15, 1852

Chief Justice Murray

delivered the opinion of the Court. The defendant undertook to convey a lot in the City of Sacramento to the plaintiff as soon as he could complete the title in himself. The plaintiff paid $100 of the purchase-money, and entered into possession, with the understanding that ho would pay the remainder whenever the defendant executed a deed to him. The evidence shows that the defendant afterwards acquired the title, and offered to convey. There was some difficulty between the parties, the plaintiff declaring he intended to hold by a squatter’s title, and that he would not recognize the defendant’s title. An action of forcible entry and unlawful detainer was instituted by the defendant to recover possession of the lot; after the commencement of which, the plaintiff made a tender of the purchase-money, demanded a conveyance, and brought this action to enforce a specific performance. On the trial of the cause, the defendant’s counsel asked the Court below to instruct the jury that “the plaintiff could not demand a specific performance of the conveyance from the defendant unless he then possessed and had acted in entire good faith; and that the burthen of proof rested upon the plaintiff to show that he had thus acted.” The Court refused to give the instruction as asked for, but amended it by striking out all after the word defendant, and inserting, “ if he has been guilty of gross negligence.” In view of the whole case, the instruction was proper, and should have been given as asked for. There was testimony before the jury, conflicting, it is true, which went to establish the fact that the plaintiff had abandoned the purchase, and claimed in his own right, by a title adverse to the defendant. He was asking for the interposition of a court of equity, and it was incumbent upon him to establish that, not only his possession, but all his conduct in relation to the purchase, was in good faith. In other words, to entitle him to relief, he was compelled to shew that he came into Court with clean hands. This was a question of fact, to be determined by the jury. The amendment, if it mean any thing, amounts to this; that the plaintiff was not entitled to relief if he had been guilty of gross negligence; that is, in tendering the purchase-money, and demanding a deed, leaving the question of bad faith entirely aside; for it will hardly be contended that the jury understood the words “gross negligence,” used by the Court, as raising a presumption of fraud in retaining the possession. We have heretofore held that the Court must give or refuse the instruction as asked for. They may modify the phraseology so as to render it more intelligible to the jury, but cannot alter the sense. The practice of substituting the instructions of the Court for those asked by counsel is a dangerous one, giving rise to many perplexing difficulties ; and has before been animadverted on by us.

Judgment reversed, with costs; and néw trial awarded.