Robbins v. Porter

Decision Date14 December 1906
Citation88 P. 86,12 Idaho 738
PartiesW. D. ROBBINS, Respondent, v. LESLIE A. PORTER and LOLO C. PORTER, Appellants
CourtIdaho Supreme Court

SPECIFIC PERFORMANCE-STATUTE OF FRAUDS-CONFLICTING EVIDENCE-SUFFICIENCY OF COMPLAINT.

1. A contract to convey real estate will be enforced when it is shown that a deed was executed and left in the hands of the attorney of the grantor for inspection by the grantee, and after such inspection the grantee was willing to accept the deed, and had already paid the purchase price.

2. A deed properly executed and left with the attorney of the grantor of real estate is sufficient to remove the bar of the statute of frauds in an action for specific performance where the purchase price has been paid.

3. Where the evidence is conflicting and the case is tried to the court, and it appears from the transcript that the judgment is fully justified by evidence, under a long-established rule of this court, even though the case be for specific performance, the judgment will not be reversed.

4. A complaint that fully sets out the contract for the conveyance of real estate, although the original contract was verbal that is afterward merged into a different contract which is evidenced by a deed left in the hands of the attorney of the grantor for inspection of the grantee, is sufficient upon which to base a judgment for specific performance.

(Syllabus by the court.)

APPEAL from the District Court of Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action for specific performance of a contract to convey real estate. Judgment for plaintiff, from which, and an order denying a motion for new trial, defendants appealed. Affirmed.

Judgment sustained, with costs to respondent.

Geo. W Tannahill, for Appellants.

The allegations contained in the complaint are insufficient to take the case out of the statute of frauds, involving as they do the title to the real estate and the specific performance of a contract for the conveyance of the same from the appellants to the respondent. This contract is not based upon any written instrument, or any promise whereby any part of the consideration was paid, or any memorandum in writing signed by the parties to this action. Allegations of part performance are insufficient to take the case out of the statute, and the objection to the introduction of any evidence in support of the allegations contained in the complaint should be sustained. (Wood on Statute of Frauds 820, and cases cited; Wood v. Farmare, 10 Watts (Pa.), 204.)

A mere contract or a covenant to convey at a future time on the purchaser to perform certain acts does not create an equitable title. It is only when the purchaser performs or tenders performance of all the acts necessary to entitle him to a deed that he has an equitable title and may compel a conveyance. Prior thereto he has at best only a contract for land, when he shall have performed his part of the agreement. (Warvelle on Vendors, 188; Chappell v. McKnight, 108 Ill. 570.)

A party in default has no standing in equity to compel performance by another party similarly situated. This is one of the best known rules governing this branch of the law. Therefore, he who seeks to enforce a contract as against others must be himself without default, and ready and willing to comply. (Warvelle on Vendors, 2d ed., sec. 756; Bishop v. Newton, 20 Ill. 175; Brown v. Cannon, 5 Gilm. (10 Ill.) 174.)

Daniel Needham, for Respondent.

Undelivered deeds, and deeds delivered in escrow are sufficient written evidence of the existence of a contract to be enforced as a contract between the parties. (White v. Breen, 106 Ala. 159, 19 So. 59, 32 L. R. A. 127; Rutenberg v. Main, 47 Cal. 213; Salmon Falls Mfg. Co. v. Godard, 14 How. 447, 14 L.Ed. 493.) Motion for nonsuit on account of insufficiency of evidence is waived by the subsequent introduction of testimony by the mover. (Chamberlain v. Woodin, 2 Idaho 642, 23 P. 177; Bradley v. Poole, 98 Mass. 169, 93 Am. Dec. 144; Grand Trunk Ry. Co. v. Cummings, 106 U.S. 700, 27 L.Ed. 266, 1 S.Ct. 493; Accident Ins. Co. v. Crandal, 120 U.S. 530, 30 L.Ed. 740, 7 S.Ct. 685.) A finding of fact by the trial court is conclusive on appeal, there being evidence to support it. (Curtin v. Harvey, 120 Cal. 620, 52 P. 1077; Anderson v. Johnson, 120 Cal. 657, 53 P. 264; Yore v. Seitz (Cal.), 57 P. 886.) Where the evidence is conflicting the findings of the lower court will not be disturbed. (Connolly v. Wicks (Cal.), 51 P. 37; Barker v. Gould, 122 Cal. 240, 54 P. 845; Spitter v. Kaeding, 133 Cal. 500, 65 P. 1040; Prince v. Kennedy (Cal. App.), 86 P. 609; Spaulding v. Coeur d'Alene Ry. & Nav. Co., 5 Idaho 528, 51 P. 408.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, C. J.

This is an action for the specific performance of a contract to convey land. It is alleged in the complaint that in November, 1903, plaintiff and defendant entered into a contract, wherein plaintiff was to procure from Nora Hart, Cora Jackson, her husband, William Jackson. Ellen Winnier and Dunbar Winnier, her husband, deeds to all their rights and equities in certain lands in Asotin county, Washington, for defendant, and for the procuring of said deeds defendant agreed to pay to plaintiff $ 1,500. It is then alleged that plaintiff procured such deeds, and there was a payment of $ 250 to plaintiff by defendant on the contract; that subsequent to making the foregoing contract and performing the deeds aforesaid, and the payment of said $ 250 to plaintiff by defendant, Leslie A. Porter, to wit, on or about the day of March, 1904, plaintiff and Leslie A. Porter modified their former agreement, and entered into another agreement wherein said Leslie A. Porter agreed to execute and deliver to plaintiff, in full payment of said balance of $ 1,250 due plaintiff from defendant for procuring said deeds, a good and sufficient warranty deed to certain lands in Nez Perce county, covering about three and one-half acres; that such lands were surveyed by the county surveyor of Nez Perce county at the instance of defendant Leslie A. Porter, and defendants executed their deed to said premises to plaintiff for the consideration of the said sum of $ 1,250 balance due on the original contract, and put plaintiff in the quiet and peaceful possession thereof; that at the time of making said subsequent agreement, survey and deed, the premises were occupied by one Miss Bashor, as tenant, who paid the rental to defendant, Leslie A. Porter, who turned the same over to plaintiff; that defendant, Leslie A. Porter, has refused, and still refuses, to deliver said deed to plaintiff, although the full purchase price of said premises has been paid by plaintiff, and plaintiff put into possession of said premises, and the delivery of said deed requested by plaintiff of defendant L. A. Porter; that Lolo C. Porter is the wife of Leslie A. Porter. The prayer is that defendants be ordered and adjudged to deliver to plaintiff the deed they executed and agreed to deliver, and if they have otherwise disposed of the property or encumbered the same, that plaintiff have judgment against defendants for the sum of $ 1,250.

The defendants answered this amended complaint and denied the original contract set out in the complaint; also that plaintiff procured the deeds as alleged in the complaint, and deny generally all the allegations of the complaint excepting the allegation that Leslie A. Porter and Lolo C. Porter are husband and wife. For a further defense defendants aver that on or about the tenth day of March, 1903, plaintiff represented to defendant that he had powers of attorney from all the heirs having any property rights or interest in the property in Asotin county, Washington, for which plaintiff alleges that he procured the deeds; that the plaintiff did not have such power of attorney, and could not have procured such title to said lands, and did not know the persons in whom the title was vested, and did not, and could not, procure the title therefor to said land, or any part thereof, except the title and interest of one Nora Hart, an undivided one-twelfth interest in and to said land, and the right, title and interest of all other persons owning the remaining eleven-twelfths interest the plaintiff never did procure for defendant, and defendant lost nearly all the other interests, and was obliged to sell out and dispose of the interests that he had secured in and to said land, which was too inconsiderable for any use whatever, and because he could not procure the other interests which the said plaintiff had agreed to procure for him, and which he did not, and never could, procure; that plaintiff never had any power of attorney whatever from the heirs owning a larger portion of the interest in said land, and was never in any position to deal with them in any way whatever and other interests, to wit, the interest of Cora Jackson nee-Cora McBeam, for which he claimed to have a power of attorney to act, has been conveyed and disposed of by said Cora Jackson and William Jackson, her husband, prior to said plaintiff having any authority whatever to convey or to deal with the same. It is then averred that defendant has been damaged in the loss of said property, and by virtue of the representations and inability of said plaintiff to secure for him and convey said property to defendant in the sum of $ 5,000, for which amount he demands judgment.

Plaintiff answered the separate defense of defendants by denying each and all of the averments thereof. Defendant, Leslie A Porter, filed his cross-complaint in which it is alleged that he is the owner and entitled to the immediate possession of the three and one-half acres of land in dispute, and...

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