12 Nev. 393 | Nev. | 1877
By the Court,
This is an action of ejectment brought to recover thepossession of two small tracts of land, designated as lots numbers one and two (containing eighteen acres, more or less), being a portion of the land which plaintiff purchased on the twelfth day of November, a.d. 1873, by sale made under a mortgage executed by the Nevada Land and Mining Company, limited, on the twenty-ninth day of March, a.d. 1870, and recorded on the fourteenth day of July, a.d. 1870. Lot one contains about four acres.
The defendant claims the land in dispute under an alleged parol contract from said corporation to convey the premises to him. It appears, from the findings of the court below, that defendant, Lee, with full knowledge of the existence of the mortgage above-mentioned, on the eighteenth day of August, A.D. 1872, made a verbal agreement with one F. F. Osbiston, acting for said corporation, by the terms of which the defendant, Lee, was to pay, and did pay, the sum of one hundred dollars to said company, and took possession of lot one, “ and upon payment by defendant of a further sum reserved to be paid afterwards, said company agreed to convey to defendant the title to said land; that defendant continued in possession of said land from said eighteenth day of August, 1872, until its purchase by plaintiff, and ever
The plaintiff, by his purchase under the mortgage, became vested with whatever title the Nevada Land and Mining Company, limited, had on the day of the execution and recording of said mortgage, which was long prior to' the verbal agreements made with Osbiston and with Storry.
Unless said agreements were of such a character as to bind plaintiff, or unless plaintiff is bound by some verbal assurance made on his part at the time of his purchase, it is evident that defendant has no right to the possession of the land in controversy.
It is not pretended that plaintiff would be bound by the verbal agreements maíle by Storry or Osbiston, unless he had knowledge of their existence, and it does not appear from the findings of the court that he had any knowledge of the alleged contract of defendant with Storry for the purchase of lot two, or that he ever gave to defendant any assurance whatever that he would convey lot two to defendant, or make it all right with him in regard to that portion of the land. It is true that Lee testified that he showed plaintiff the boundaries of lot number two, and pointed out the identical ground in controversy in this suit, and that plaintiff promised that if he bought the land he would do the same by him as the English company had agreed to do; but the plaintiff, in his testimony, states positively that at the time he had the conversation in regard to the property, the defendant said: “He had no claims on anything except that four-acre piece.” In his testimony the plaintiff says: “At the time I made the purchase I did not understand Lee to claim anything except that block of four acres, or about that.” In another portion of his testimony he says: “I didn’t know he claimed anything but that four-acre lot, until he went to fencing it.” Upon cross-examination, he said that just prior to the purchase, Storry told him that Lee had a claim on the four-acre lot; that Lee “had no
There is other testimony in the record equally clear and positive on this point; but enough has been quoted to show that the court was justified in only finding that there was a verbal assurance upon the part of plaintiff as to lot one. This being true, it necessarily follows that as to lot two the defendant is a mere trespasser, and liable to be removed from the possession, in an action of ejectment, by the owner of the land. (Brown on Statute of Frauds, sec. 483.)
As to lot one, the plaintiff did promise, as stated in the findings, that in case he purchased the land, he would make it all right with defendant; that is, he verbally promised to do what the Nevada Land and Mining Company, through its agent, had agreed to do. From an examination of the evidence, as well as from the findings of the court, it is manifest that the defendant failed to establish any valid title to lot one.
The agreement of Osbiston was subject to the mortgage under which the plaintiff derived title. It was uncertain and indefinite as to its terms, and was not, in our judgment, such an agreement as could be enforced. But, if all the objections against the agreement made by Osbiston are waived, it is still very evident that the defendant is not entitled to recover the land upon the verbal assurance -made by plaintiff. It is not shown, or attempted to be shown, that defendant entered into the possession of the land
This finding is conclusive upon the point that there has been no such performance, or part performance, on the part of defendant as to constitute any valid defense to this action. We think the authorities cited by appellant fully sustain the conclusions we have reached. In fact, there does not appear to be any conflict in the authorities as to the legal principles applicable to this case.
The statute of frauds is intended for the protection of the respective parties to a parol agreement. Whenever one party, confiding in the integrity and good faith of another, proceeds so far in the execution of a parol contract that he can have no adequate remedy unless the whole contract is specifically enforced, then equity requires such relief to be granted; because, if the rules were otherwise the statute, which is designed to prevent fraud, would itself become an instrument of fraud; and hence it is that courts of equity in cases where a party has entered upon land and made permanent and valuable improvements thereon, under and'in pursuance of a parol agreement for its purchase, will enforce
To entitle a party to take the case out of the statute of frauds, upon the ground of part performance of a parol contract, it is essential that the terms of the contract should be clearly and definitely established. (1 Story on Eq. Jur. sec. 764; Petrick v. Ashcroft, 4 C. E. Green, 339; Foster v. Kimmons, 54 Mo. 488; Allen v. Webb et al. 64 Ill. 342.) The acts of the party must, as stated by Story, “ clearly appear to be done solely with a view to the agreement being performed.” (Story Eq. Jur. sec. 762.)
It is also well settled that before the contract can be enforced, it must be shown that the party seeking its enforcement has performed, or offered to perform, or been ready and willing to perform, all the essentials of the agreement on his part. (Ery on specific performance of Contracts, sec. 608; Longworth v. Taylor, 1 McLean, 395; Colson v. Thompson, 2 Wheat. 336; Bates v. Wheeler, 1 Scam. 54; Goodale v. West, 5 Cal. 341; Brown v. Haines, 12 Ohio 1; Earl v. Halsey, 14 N. J. Eq. 332; Thorp v. Petit, 16 N. J. Eq. 488.)
If a party is in possession of land under a parol contract that is not valid either in law or equity, or if a party, after being admitted into possession under a valid contract to purchase, refuses to comply with his agreement, he is a mere trespasser, and liable to be removed by ejectment, at the will of the owner of the legal title. (Story Eq. Jur. sec. 761; Willard’s Eq. Jur. 285.)
The other questions argued by appellant -were settled by the former decision in this case, (Evans v. Lee, 11 Nev. 194) and will not be again discussed.
The judgment of the district court is affirmed.