35 Cal. 646 | Cal. | 1868
Upon the question as to the fact of a verbal contract of sale of the lands in controversy between plaintiff and defendant, the payment of the full consideration agreed upon by defendant to plaintiff, and the entry of defendant into possession of the premises under such verbal contract of sale, there is a substantial conflict of evidence, and under the uniform action of this Court, although the evidence in this • case, as presented by the record, seems to be vague and unsatisfactory, we do not feel at liberty to disturb the ■findings.
Theerror assigned in the admission of “ Exhibit A” in .evidence, against objections of plaintiff, is untenable upon the first ground stated, as the evidence of the handwriting of the signature thereto was sufficient primarily to authorize its admission. Upon the second ground of objection we are not sufficiently advised, the instrument" or exhibit not appearing in the statement.
The facts as found by the Court are sufficient not only to defeat the action in ejectment, but to authorize a decree for specific performance in behalf of defendant. (Arguello v. Edinger, 10 Cal. 159.)
The point made in appellant’s brief as to the invalidity of the contract of sale under the Pre-emption Laws of the United States, does not appear to have been made in the Court below, and hence is not available in an appellate Court.
Judgment affirmed, and remittitur directed to issue forthwith.
Mr. Justice Sanderson expressed no opinion.
