Hoen v. Simmons

By the Court, Bennett, J. Action by plaintiff to recover possession, and cross suit by defendants for specific performance. It is clear that the plaintiff is entitled to recover possession of the lot in question, unless the defendants have a right to compel him to convey it to them. The counsel for the defendants made a point, that, inasmuch as the plaintiff had proved no title in himself, the defendants, being in possession, could not be ousted. This is very good law when applied to a proper state of facts, but lias no application in this case. The defendants, having entered into possession, claiming under the plaintiff and in subordination to his title, are estopped from questioning it. Their position is similar to that of a tenant, who cannot gainsay or [121] deny the title of Ms landlord, without having first restored the possession. The plaintiff must, therefore, recover, unless the defendants show a right to a specific performance, upon the principles adopted by courts of equity. The affirmative of this latter position can be sustained only upon the ground, that there was a subsisting contract in writing reciprocally binding upon the parties ; or that there was a verbal agreement, and part performance of it by the defendants under such circumstances, that it would be a fraud on the part of the plaintiff if he were not compelled to convey. There was no contract in writing. A paper was drawn up which might have acquired the force of a written contract, had it been signed and delivered ; but without signature or delivery, it is of no account, It was inchoate and incomplete, and neither party was bound by it. The contract, therefore, if there was one, was merely verbal, and there is no part performance within the equitable rules which govern decisions in such cases. A party, asking the interposition of the equitable power of the court in enforcing a verbal contract for the conveyance of real estate, should show that he has, on his part, fully complied with the substance of all the provisions which he engaged to perform. The verbal contract in this case was, that the defendants should pay $1000 down, and $4000 in two months thereafter, with interest at the rate of two per cent, per month. The period limited for the payment of the full amount had elapsed long before the commencement of the suit; and in order to entitle the defendants to a specific performance, they should have shown that they had paid or tendered the whole sum of 05000, with the stipulated rate of interest. This they have not done. But the defendants say that by the Mexican law a verbal contract for the sale of land was equally valid, as if it were in writing. We think not, and so held in Harris v. Brown, (ante, p. 98.) There is no doubt about the correctness of that decision. There never has been a time, since the adoption of the Feero Juzgo, in which lands could be conveyed under Spanish or Mexican law, without an instrument in writing,—-unless it was, [122] perhaps, in the case of an executed contract, where corporeal possession was delivered at the very time of the sale by actual entry upon the premises, and the doing of certain acts analogous to the livery of seisin at common law. Had this not been so, one main branch of the revenues of the Spanish Crown and Mexican Republic, called the Alcabala, being a duty payable upon the transfer of land, would have been easily evaded. By Law 29, lib. 8, tit. 13, of the Recopilación de Indias, every sale of real estate was required to be made before the escribano of the place where the contract was entered into, and if there were no escribano, before the judge of First Instance; and these officers were required to furnish a copy and statement of the writings or contracts made before them, with the day, month, and year in which they were made, the names of the seller and purchaser, the property sold or exchanged, and the price. (Arrillaga's Decretos, vol. for 1838, p. 421.) Another author says, that the conveyance of lands was required to be by a written instrument, properly authenticated, (escrito autentico.) Without this, neither possession nor property in lands could be sustained in law; no judicial designation of boundaries, or fixing of landmarks could take place ; only with the title-deeds before the eye could these important and delicate acts be performed, whether the object were to avoid a litigation, or bring a pending suit to a termination, according to justice and truth. Such importance was attached to the formalities prescribed by law for the execution of deeds of conveyance, that if, by chance, an instrument were defective in form, as, for instance, if it lacked the signature of the judge, or escri-bano, or witnesses, or parties, or an exact statement of their acts, motives, and objects, the instrument would be vicious (vicioso,) and Consequently null, (nulo.) (Ordenanzas de Tierras y Aguas, p. 144, 145.) So important was this principle of law deemed, that, in the convention between the Mexican government and the English holders of Mexican bonds, entered into on the 15th day of September, 1837, by which the bonds were authorized to be exchanged for lands, it was thought proper to insert a stipulation, [123] that after title was acquired and possession taken, the lands should not thenceforth be transferred, except by means of a written instrument in due form of law. (Por medio de escritura de venta en la forma legal.) (See. 5, of such convention, p. 53, of Ordenanzas de Tierras y Aguas.) Ve do not doubt that a writing was as necessary for the transfer of lands in Mexico, as it is in the United States. Judgment reversed, with costs.