Atoigue Gogo v. Cruz Ada, Civ. No. 5-A.

• Decision Date: 31 January 1955
• Docket Number: Civ. No. 5-A.
• Citation: 128 F. Supp. 92
• Parties: Ignacio ATOIGUE GOGO, Appellant, v. Antonio CRUZ ADA, Appellee.
• Court: U.S. District Court — District of Guam

128 F. Supp. 92

Ignacio ATOIGUE GOGO, Appellant, v. Antonio CRUZ ADA, Appellee.

Civ. No. 5-A.

District Court of Guam, Appellate Division.

January 31, 1955.

Palting & Arriola, Agana, Guam, for appellant.

V. C. Reyes, Agana, Guam, for appellee.

Before SHRIVER, Presiding Judge, and McLAUGHLIN and WIIG, Judges.

SHRIVER, Presiding Judge.

This is an appeal from the Island Court in which that court ordered, adjudged and decreed specific performance of an alleged agreement to sell and convey a portion of Lot No. 3215, Sinajana, Guam, for a consideration of $500. As a basis for its decree the court found that the appellant and the appellee entered into an oral agreement in 1946 for the purchase and sale of the land for $500 and free electric light service by the appellee; that at that time the title to the land was in an estate, but such title was to be deeded by the administratrix to appellant's father, who had agreed to convey it to appellant; that in reliance upon the oral agreement, the appellee built a house valued at $5,000 on the land and otherwise complied with the agreement but that when the appellant obtained title to the land he refused to deed it to appellee. The court found that there was a sufficient partial performance on the part of the appellee to take the agreement out of the statute of frauds.

The findings of the Island Court are not, however, supported by the evidence. No contract existed. In addition to the transcript and record we have a report on a conference and stipulations entered into between the parties pursuant to Rule 9 of the Appellate Rules of the District Court.¹ An analysis of the testimony and admissions, construed in the appellee's favor, shows the following: The appellee was required to give up his home in the city of Agana in 1946 and he contacted the appellant and asked if he could build a house on appellant's land. The appellant informed him that the land belonged to appellant's father, who gave permission to build the house. There was at that time no discussion of the sale of the land or purchase price. The parties simply agreed where the house should be built. The appellee built his house and afterward approached the appellant's father to purchase the land but was informed that as there were no taxes being levied it was not necessary to sell. The appellant did not obtain title to the land until December 1953. The appellee furnished certain power and light without charge to the appellant. The appellee offered to pay $500 for the land and subsequently had a deed prepared, but there is no evidence that the appellee ever accepted payment, and the money was paid into court. Apparently Chief Judge Manibusan of the Island Court attempted to get the interested parties to agree upon a settlement, but this did not succeed. The appellant's father urged the appellant to transfer the land for the consideration offered in order to keep faith with the appellee.

There is no question of fraud or misrepresentation here. The appellee knowingly built a house on land not owned by the appellant in the expectation that the appellant would eventually own the land and would be amenable to its sale. No price was mentioned until after the house was built (Tr. p. 16), nor was any survey made of the land involved and such land was only a portion of the lot. At one time in 1947 the appellee paid rent for the land to the appellant because occupants of another portion of the lot were paying rent (Tr. p. 15).

In these circumstances was the Island Court warranted in ordering specific performance of the alleged agreement to sell the land? Under Section 1624² of the Civil Code of Guam an agreement for the sale of real property is invalid unless the contract is in writing and subscribed by the person to be charged or his agent. Under Section 1971³ of the Code of Civil Procedure of Guam, conveyance of real property must be executed by the grantor or his agent, but under Section 1972⁴ is not to be construed:

"to abridge the power of any court to compel the specific performance of an agreement, in case of part performance thereof."

These provisions were taken from the California Codes and may be construed in the light of California decisions, United States v. Johnson, 9 Cir., 181 F.2d 577. Before the appellee is entitled to specific performance of the contract under the doctrine of partial performance, the acts of part performance, in order to be effective to remove an oral agreement from the operation of the statute of frauds, must be referable to and induced by the contract relied upon and must have been done with a view to its complete performance, 49 Am.Jur. 428. And acts performed before the making of the oral contract sought to be enforced or which are merely preliminary, preparatory or ancillary to the contract sought to be enforced are not sufficient as part performance. Thus, expenditures incurred prior to the making of the agreement and in contemplation of the subsequent purchase of the property or improvements made or labor performed anterior to the date of the parol agreement do not constitute a part performance thereof, 49 Am.Jur. 431.

California decisions follow these principles. In Forbes v. City of Los Angeles, 101 Cal.App. 781, 282 P. 528, 531, the court stated:

"Attention has not been called to any decision in this state holding that an oral contract for the sale of real property can be specifically enforced, in the absence of a part performance thereof.

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