Field, C. J. concurring.
Ejectment for a tract of land in San Joatpiin county.
The defendant, Marshall, sets up, against a complaint in the common form, several defenses—some legal and one equitable—the last being that a parol contract had been made between him and plaintiff for the land, and that having complied with the terms of the agreement on his part, he is entitled to, and, by way of cross action, prays a specific performance. Special issues were framed involving these various defenses, legal and equitable, and all submitted together to the jury.
1. This was irregular. The equitable and legal matter should be kept distinct and separate, else confusion, embarrassments and delays must ensue. We laid down the proper mode of proceeding in the case of Arguello v. Edinger (10 Cal. 159). “ The defense arising from a verbal contract for the sale of land, aecompanied with acts of part performance, taking the contract from the operation of the statute, is permissible, under our system of practice, to an action of ejectment for the recovery of the premises. The only effect of this mode of asserting the rights of the defendants, instead of by a bill in equity, is to require the Court to pass upon the questions raised by the answer in the first instance. If upon hearing the evidence, the Court should determine there was ground for relief, it would enjoin the further prosecution of the action with its decree for a specific performance; and on the other hand, if it should refuse the relief, it would call a jury to determine the issue upon a general denial. (Thayer v. White, 3 Cal. 228 ; Clary v. Goodman, 2 Kernan, 266; Tibeau v. Tibeau, 19 Mo. 78.) ”
It does not by any means follow that a jury must be called to pass upon an equitable defense to an action of ejectment. The parties are entitled to a trial by jury upon the legal issues; but the Court, sitting to administer equitable relief, either by way of defense to an action of ejectment, or affirmatively, sits as a chancellor, and in the exercise of equitable powers, may or may not order an issue or issues to a jury in its discretion; but in a great majority of cases the Judge can as well pass upon the facts as a jury, and may do so *458with a great deal less delay and expense. It is only when the evidence is very contradictory, and the question turns on the relative credibility of witnesses, or in such exceptional instances that the chancellor calls in the aid of a jury to assist him in sifting and ascertaining the facts.
2. In this case, the plaintiff standing upon his grant, confirmation and patent, and there being no dispute that the land sued for was within the limits of the patent, there was nothing for the jury to find upon the legal part of the case except the damages; for we have already settled the question as to the effect of the patent when opposed to claims or titles arising subsequently to the grants on which they issued. (See Teschemacher v. Thompson, 18 Cal. 11; Leese and Vallejo v. Clarke, Id. 535.)
3. The main question is as to the equitable title to relief set up by the defendant. The jury returned a verdict upon the special issues submitted, and upon this verdict the Court made a decree affirming the right of the defendant to a specific performance of the parol agreement, and decreeing such performance. As the decree rests upon these findings, it is only necessary to look to them in connection with the testimony to see if they sustain the decree. The jury found that the oral agreement was to this effect: That the plaintiff was to choose one referee, the defendant another, and the two to choose a third, and they to appraise the value of the land in controversy, the money to be paid at the confirmation of the grant by the Land Commissioners. It seems that the land was confirmed by the Commissioners in 1855, and no offer was made until 1861, after this suit was brought, of compliance with these terms. Taking this finding to correctly represent the contract, the case made by the defendant would seem to fall within the doctrine of Green v. Covillaud (10 Cal. 324). See also Taylor v. Longworth (14 Pet. 172). An ingenious effort is made by the learned counsel for the respondent to distinguish this case from that. It is argued that it was the duty of Weber to notify Marshall of this confirmation, which was not done, and that Marshall was in no default until such notification. Waiving all consideration of the fact that it is in proof that Marshall knew shortly after it was made of this decree, it cannot be held that this fact was one peculiarly within the knowl*459edge of Weber, and therefore within the rule which requires notice in such cases from the party having the peculiar information. On the contrary, this Board was a public tribunal, whose proceedings were open and notorious. General interest and inquiry were excited upon these matters, which involved large interests, affecting whole communities. It is almost impossible that any intelligent man, personally interested in or affected by the decision upon a Mexican grant, in so large and populous a county as San Joaquin, should not have been apprized, shortly after its rendition, of a decree affirming or rejecting the claim. We do not perceive, therefore, that this circumstance can affect the principle. It is argued, too, that in this case payment was to be made according to the value at the time of the appraisement, and therefore the delay to execute the agreement was not injurious to Weber, and that this distinguishes the case from that of Green v. Covillaud and that class of cases. But there is more plausibility than soundness in this view. The party insisting on specific performance must show himself “ eager, prompt, ready and desirous to perform the contract on his part.” '* * “ It is incumbent upon the party asking specific performance to show that he had used due diligence; or if not, that his negligence arose from some just cause, or had been acquiesced in. It is not necessary for the party resisting the performance to show any particular injury or inconvenience; it is sufficient if he has not acquiesced in the negligence of the other party.” (Benedict y. Lynch, 1 Johns. Ch. 373 ; Green v. Covillaud, 10 Cal. 327.) Nor does possession by the party seeking performance make the rule different. (See Anthony v. Leftwick, 3 Rand. 246.) So in Taylor v. Longworth (14 Pet. 172). The rule is thus stated : “ And even when time is not thus, either expressly or impliedly, of the essence of the contract; if the party seeking a specific performance has been guilty of gross laches, or.has been inexcusably negligent in performing the contract on his-, part, or if there has, in the intermediate periods, been a material* change in circumstances affecting the rights, interests or obligations-of the parties—in all such cases Courts of Equity will refuse- to. decree any specific performance upon the plain ground that, it would be inequitable and unjust. But except under circumstances; *460of this sort, or of an analogous nature, time is not treated by Courts of Equity as of the essence of contracts, and relief will be given to the party who seeks it, if he has not been grossly negligent and comes within a reasonable time, although he has not complied with the strict terms of the contract. But in all such cases the Court expects the party to make out a case free from all doubt, and to show that the relief he asks is, under all the circumstances, equitable, and to account in a reasonable manner for Ms delay and apparent omission of duty; and in Green v. Covillaud, referring to this doctrine affirmed in Brown v. Covillaud, (6 Cal.) we say: “It will thus be seen that, so far from giving countenance to the idea that a party may wait for years, or even months, without fulfilling any part of his agreements, and then when he thinks it his interest to intervene, come in and claim as an arbitrary right a literal enforcement of the contract which he has broken, it is laid down by the Court that in every case of delay, a reasonable excuse for that delay must be given. In this case, as we have shown, this Court has decided there was no excuse at all.”
We think, therefore, that it became the duty of Marshall, within a reasonable time after the confirmation by the Land Commission of this claim, to notify Weber that he was ready to execute the agreement and to appoint the referees, and that a failure to do this for five or six years was fatal to his claim for performance.
All this is said on the supposition that the jury were right in their finding that the contract was for the payment of the money at the time of the confirmation. This is not clear to us. Possibly the more reasonable construction of the contract is, that the money was not to be paid until it was ascertained that this particular land was embraced by the grant confirmed by the proper authorities, and that this could not be known until an approved survey of the premises.
In reference to the parol agreement, it may be remarked that there is no pretense of any payment of purchase money. It rests as a valid, enforcable contract upon the oral proof and the possession and improvements made by Marshall. In such cases it should very clearly appear that the improvements were made in reference to or induced by the contract. The rule is thus stated in Arguello *461v. Edinger, (10 Cal. 160) in which case it was said: “ What acts shall be deemed a part performance is a matter upon which there has been much discussion and some conflict of opinion. The true rule, gathered from the adjudged cases, is that nothing can be regarded as a part performance, to take the case out of the operation of the statute, which does not place the party in a situation which is a fraud upon him unless the contract be executed. Taking possession is held such act of part performance, as the party might be treated as a trespasser if he could not invoke the protection of the contract. And if, upon the faith of the contract, the purchaser should proceed to make valuable improvements, the most palpable fraud would be perpetrated if the vendor were permitted to withdraw from its execution.” (Clinan v, Cooke, 1 Sch. & Lef. 41; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 284; Lowry v. Tew, 3 Barb. 413 ; Story’s Eq. 761.)
Nor is it deemed necessary, as the point has not been argued, to consider whether this agreement for the selection of referees to affix the value of the property be an agreement capable of specific enforcement. (See 1 Ala. 99; 3 Parke, 241.)
Nor is it necessary to decide whether, if the agreement be proved as alleged, and the possession of the defendant permitted by the plaintiff to await the contingency contemplated, the plaintiff could maintain this action of ejectment without notice to the defendant.
For the error in the decree, based upon the findings of the jury, the decree is reversed and the cause remanded for a new trial.