Stockton v. Herron
Citation | 3 Idaho 581,32 P. 257 |
Parties | STOCKTON v. HERRON |
Decision Date | 02 February 1893 |
Court | United States State Supreme Court of Idaho |
EJECTMENT-SPECIFIC PERFORMANCE.-To entitle a defendant in an action of ejectment to relief by way of specific performance, his answer or cross-complaint must show such a contract or agreement as would sustain a bill in equity for specific performance.
PRACTICE-UNILATERAL CONTRACT.-An averment in an answer seeking affirmation by specific performance in ejectment, alleging a contract entirely unilateral, without time, terms or considerations or conditions, is bad on demurrer.
(Syllabus by the court.)
APPEAL from District Court, Elmore County.
Reversed and remanded for a new trial.
H. W Weir, for Appellant.
"An equitable defense, interposed in an action of ejectment should contain, in substance, the elements of a bill in equity; and that its sufficiency, other than as to mere form, is to be determined by the application of the rules observed in courts of equity, when relief is granted." (Kentfield v. Hays, 57 Cal. 409; Miller v. Fulton, 47 Cal. 147; McCauley v. Fulton, 44 Cal. 362; Bruck v. Tucker, 42 Cal. 352; Milton v. Lawler, 52 Cal. 405; Arguello v. Edinger, 10 Cal. 150.) "The complaint, in a cross-action, ought to be such as would be maintainable in a direct action on the equity side of the court." (Collins v. Bartlett, 44 Cal. 371; Krechbaum v. Milton, 49 Cal. 50; Brodrib v. Brodrib, 56 Cal. 566.) "While it is conceded that under the system of code pleadings an equitable defense may be set up in an action of ejectment, it is also well settled that such a defense must contain all the essentials of a bill in equity, and the issue thus made up is triable by the court without a jury as an equitable issue." (Kahn v. Old Telegraph Min. Co., 2 Utah, 174-195; Whittier v. Stege, 61 Cal. 238.) An answer in ejectment, setting up an equitable defense, is in the nature of a bill in equity, and must contain its essential averments. The defendant then becomes an actor with respect to the matter alleged by him, and his defense must be of such a character as may be ripened by the decree of the court into a legal right to the premises. (Estrada v. Murphy, 19 Cal. 249.) If a defendant in an action of ejectment desires to avail himself of an equitable defense as a bar, he must set it up in his answer with the same particularity which is observed in a bill in equity. (Downer v. Smith, 24 Cal. 114) To entitle a party to a decree for specific performance the contract must inter alia be complete, certain, clear and unambiguous in all its terms and provisions. (2 Story's Equity, sec. 764; Pomeroy's Specific Performance, sec. 148.) The equitable defense should be first passed upon by the court; and it is irregular to submit to the jury all the legal and equitable defenses together. (Lestrade v. Barth, 19 Cal. 660.) The court, and not the jury, must pass upon the equitable title set up in the answer; it must be sufficiently pleaded to warrant the court in granting a decree, which will stop the further prosecution of the case. (Downer v. Smith, 24 Cal. 114; Badley v. Ferguson, 30 Cal. 512; Martin v. Zellerbach, 38 Cal. 300, 99 Am. Dec. 365; Brodrib v. Brodrib, 56 Cal. 563; Kentfield v. Hays, 57 Cal. 411; Miller v. Fulton, 47 Cal. 147; McCauley v. Fulton, 44 Cal. 362; Bruck v. Tucker, 42 Cal. 352; Milton v. Lawler, 52 Cal. 405.)
J. W. Badger, for Respondent.
Where a pleading alleges an agreement to have been entered into by parties, but does not aver whether it was verbal or in writing, the presumption on demurrer is that it was in writing. (Brennan v. Ford, 46 Cal. 7.) Under our constitution all cases and issues of fact are triable to a jury. (Idaho Const., p. 6, art. 1, sec. 7; p. 19, art. 5, sec. 1.) It is sufficient to state facts showing the duty from which the law implies the promise and conditions. A memorandum imperfect because not indicating the land sold or terms given may be supported by acts of part performance (or by possession), which show what was actually intended. (2 Reed on Statutes of Fraud, pp. 188, 189, sec. 560; Amer v. Bigelow, 3 McAr. 449.) An oral contract for the sale of land may be validated by part performance. (2 Reed on Statutes of Fraud, ft. pp. 188, 189, sec. 560; Sykes v. Bates, 26 Iowa 521.) The appellant must show affirmative error. Every presumption is in favor of the judgment below. (People v. Bert, 39 Cal. 691; Brown v. Kefield, 50 Cal. 129; People v. Smith, 57 Cal. 131; Baldwin v. Barnheimer, 48 Cal. 434; People v. Gilbert, 60 Cal. 108, 9 Pac. C. L. J. 90.)
Plaintiff brought his action of ejectment against defendant, to recover possession of certain real estate situate in the town of Glen's Ferry, Elmore county, Idaho, described in the complaint. Complaint alleges title in plaintiff, ouster by defendant, and value of rents, etc., and prays judgment. A demurrer was filed to complaint, which was overruled, and the defendant then filed answer. The answer, after denying title of plaintiff and ouster, proceeds to set up the following as a defense, claiming affirmative relief thereunder:
Plaintiff filed the following demurrer to so much of defendant's answer as attempted to set up affirmative matter: ...
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Fry v. Weyen
...... must allege sufficient facts which alone and standing by. itself would sustain a bill in equity for specific. performance. (Stockton v. Herron, 3 Idaho 581, 32. P. 257; Dixie Naval Stores Co. v. German-American Lumber. Co., 76 Fla. 339, 79 So. 836; Bellevue Club v. Punte,. 148 ......
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Tyson v. Neill
...53 N.W. 625. (Cummer v. Butts, 40 Mich. 322, 29 Am. Rep. 530.) This court had occasion to pass upon a somewhat similar question in Stockton v. Herron, supra, also in Bear Min. Co. v. Clark, 6 Idaho 196, 54 P. 1007. QUARLES, C. J. Sullivan and Stockslager, J., concur. OPINION The facts are s......