By the Court,
Hastings, Ch. J.It appears that the respondent made a contract of purchase of a certain city lot in San Francisco of one Stephen Harris, as the agent of Brown the appellant, which contract was not reduced to writing nor any memorandum thereof.
That said Stephen Harris held only the title papers as evidence of his agency and did not have any written authority to sell. That no purchase money was paid nor possession taken. That appellant had sold the same property to another person before the sale, or at least notice of the sale. The court of First Instance rendered judgment against the appellant in the sum of $1,500. Respondent’s counsel holds that inasmuch as there was no statute of frauds in force in California at the time, the contract was valid. We are unable to perceive how, under any system of laws, a verbal understanding between an agent, unauthorized by any written paper, and a vendee who neither takes possession nor pays any part of the purchase money, can be enforced if repudiated by the vendor; and even if such a contract could be holden valid, it would seem to have been the duty of the vendee, under the circumstances, to have immediately notified the vendor of his purchase.
The possession of the property was in the vendor, and before the vendee could claim the property as his by a valid purchase, he should have taken possession either by actual seisin under the contract or by title papers duly executed.
We cannot perceive by wbat rules of equity the court below rendered a judgment for $1,500 in favor of respondent.
There seems to be not the shadow of equity in tbe respondent’s case.
The judgment, therefore, of the court below, is reversed.