Heffernan v. Davis

This is an action of unlawful detainer. The cause was tried by the court and defendant had judgment. Plaintiff moved for a new trial which was denied and she appeals from the judgment and order.

It is alleged in the complaint that, on or about March 25, 1906, plaintiff's intestate by lease demised and let to defendant the premises described as follows: N% of sec. 22, T. 40 N., R. 4 W., M. D. M., situated in Siskiyou County, a copy of which said lease is as follows:

“This certifies that I have this day, March 25th, 1906, leased to J. T. B. Davis, the Van place on sec. 22, T. 40, N. R., 4 W. M. D. M. for the term of six years from date, at a yearly rental of one hundred and fifty dollars, per year, payable yearly in advance. The tenant to improve the place and keep in good order.

“J. 0. Welsh.”

The court made findings: That said Welsh “did not on or about March 28, 1908, lease, demise or let to the defendant the premises described in plaintiff’s complaint”; that “defendant did not go into possession of said premises under said lease and defendant does not now hold or occupy the same”; that “no sum of money became due for the rent of

Plaintiff offered in evidence the document, exhibit “A,” to which defendant objected on the ground that “it was irrelevant, incompetent and immaterial and that if it would connect with any land that Mr. Davis had, why Mr. Davis would not be bound by it . . . and it is not signed by Mr. Davis and that it is invalid under section 1973, subdivision 5 of the Code of Civil Procedure. The Court. I think that this is the case where the objection comes in as it has, that Mr. Davis, has not signed it, and the suit being against him, I think the objection is well taken and it is sustained. Plaintiff excepted.” Defendant Davis was then called as a witness and was asked to state whether or not he went into possession of the land mentioned in the complaint. Objection was made as before and that “it is seeking to prove by parol to prove a contract that the statute says must be in writing.” Like objection was made and sustained-to a question whether or not he had “paid Mr. Welsh for the use and occupation of the land as described.”

The theory of the defense and the rulings of the court rested on the proposition that because the defendant did not sign the lease it could not be made binding upon him by showing that he went into and held possession under it. The con

An oral contract for the sale of real property is invalid but may be executed by the parties to it and its specific performance enforced in equity in case there has Been part performance. (Hi ll v. Den, 121 Cal. 42 , 44, [ 53 Pac. 642 ], See Code Civ. Proc. sec. 1972.)

In Niles v. Hancock, 140 Cal. 157 , [ 73 Pac. 840 ], the court seems to intimate that if there had been an actual taking of possession of the laud by the vendee, it would have constituted part performance of what was an insufficient compliance with section 1973.

It was said in Pearsall v. Henry, 153 Cal. 314 , 318, [ 95 Pac. 160 ] : “Where it is clearly and unequivocally made to appear that there has been a performance by a party on his part of an oral agreement required by the statute to be in writing under such circumstances as to make it inequitable to allow the other party receiving the benefit thereof to repudiate it on the ground that it was not in writing, he is estopped from doing so.”

In the case cited by respondent the action was ejectment in which the defendant set up an equitable defense, possession under a written lease. It appeared that the lease was not acknowledged or recorded in the public records which rendered it insufficient under the Maryland statute to convey legal title for the term of ten years. It was claimed, however, to. be good in equity. The court held that the “tenancy, unless it had been terminated in some lawful manner, would constitute a good legal defense to the action, and should not therefore have been set up by an equitable plea.” A reversal was ordered for the reason that an equitable defense was not allowable in actions at law. Under our practice no such distinction exists. Here there was full performance by defendant—i e., it was sought to show that he entered under the lease as written, enjoyed its benefits for the period claimed and surrendered possession only after notice to quit. There was a change of position of plaintiff’s intestate whose possession was surrendered to defendant. He now claims that he can defeat the action by resort to the statute of

In Browne on the Statute of Frauds the author states: “It is settled by a long series of authorities, that a part execution of a verbal contract within the statute of frauds has no effect at law to take a case out of its provisions (citing cases); but this of course does not apply in those jurisdictions where law and equity powers are merged in the court, sitting nominally as courts of law.” (Browne on Statute of Frauds, 5th ed., sec. 451.) Cases are cited in note to Falck v. Barlow, 110 Md. 159 , [17 Ann. Cas. 538, 72 Atl. 678 ], holding that where a tenant enters under an agreement invalid by reason of the statute of frauds, and continues in posession paying a yearly rental for the. same, and the rent is received by the owner, the tenant becomes a tenant from year to year. Here, however, no question arises as to the extent of the term of the tenancy, for the claim is for unpaid rental past due. If, as it was proposed to show, defendant went into possession and remained in possession under the lease, the writing became something more than a unilateral offer and, as was said in Bloom v. Hazard, 104 Cal. 310 , [ 37 Pac. 1037 ] : “This was a sufficient execution to make the writing a binding obligation,” though not executed by the party sought to be charged.

“When a contract is signed by one of the parties only, but is accepted and acted upon by the other party, it is just as binding as if it were signed by both of the parties.” (9 Cyc. 300.) “Where all engagements which the statute covers have been performed, an action lies upon the special contract for the enforcement of all remaining engagements, including the payment of the stipulated price for the property conveyed or services rendered.” (Browne on Statute of Frauds, sec. 124.) Here the action is for the enforcement of the engagements which have been performed. “A lessee accepting a lease under seal and entering into the use and occupation of the premises may become liable for the performance of the conditions of the lease, although the same is not .signed by him.” (24 Cyc. 903, and eases cited.)

It seems to us, however, that if, as was sought to be shown, defendant entered into possession of the land and held that possession under the lease, he is estopped to aver its invalidity and that, as he cannot be heard to challenge its validity, the action may be maintained upon it. To permit this defendant to raise this objection now, after he has enjoyed the possession and use of the land and after years of silence as to any defect in the lease, would promote injustice and must be condemned as unconscientious and therefore not to be permitted. This question of estoppel is exhaustively treated in Seymour v. Oelrichs, 156 Cal. 782 , [ 134 Am. St. Rep. 154 , 106 Pac. 88 ]; to which nothing need be added.

The judgment and order are reversed.

Hart, J., and Burnett, J., concurred.

The complaint distinctly alleges that

defendant went into possession of the premises under the lease pleaded. It is true that there was no evidence that defendant did so enter into possession and the offer made by plaintiff does not in terms call for an answer by the defendant, called as a witness for plaintiff, to the direct point of his entering into possession under or by virtue of the lease. But it seems to us that enough appeared to show that the trial court was of the opinion that not only was the paper signed by the lessor incompetent to establish any right in plaintiff, but that any evidence tending to show by parol proof of entry under the so-called lease would be equally incompetent.

If it should turn out on a new trial that defendant never knew that such a document existed and therefore did not enter into possession under it, a different situation would be presented. ' In such event plaintiff should be permitted so to amend her complaint as to meet .the facts as they existed and if, as is contended by defendant, she can recover only for use and occupation irrespective of the lease, plaintiff should be given an opportunity to do so by amending her complaint. We do not think that such an amendment would introduce an entirely new and different cause of action. The use and occupation of the premises and nonpayment therefor constituted the basis of the action and could have been set up in the original complaint by a separate count and we see no reason why it may not be done at this time if the facts warrant it. (Born v. Castle, 22 Cal. App. 282 , 286-288, [ 134 Pac. 347 ].)

The petition is denied.

Burnett, J., and Hart, J., concurred.