I dissent from the judgment of reversal, and adhere to former opinion.
The following is the opinion above referred to by Mr. Justice" McFarland, rendered in Bank on the 27th of June, 1888: —
McFarland, J.This is an action for the partition of the rancho mission (or ex-mission) of San Diego. There was originally a great many parties, both plaintiff and defendant, to the action; but as the interlocutory decree was satisfactory to all the parties except the plaintiff Luco and the defendant De Toro, it was stipulated that a final decree should be entered, with permission to said Luco and De Toro to further litigate between themselves. The case was thus ended as to all the other parties; the only question left being whether Luco or De Toro was entitled to a certain specific segregated tract of 5,053 acres of the rancho. This tract was set apart to Luco upon the theory that a commissioner’s deed to him, in pursuance of a decree of the superior court of San Francisco, passed the legal title. This decree was in an action *425brought by- Luco against one Carlos Olvera, as executor of the estate of Agustín Olvera, deceased, to compel the execution of a deed for the land in controversy according to the terms of a certain contract made between said Agustín Olvera, deceased, and one Isaac'Hartman. In that action, Carlos Olvera made default; but upon appeal, in the case at bar, this court reversed that part of the decree which awarded the land to Luco, upon the ground that Carlos Olvera was not the executor of said estate when said action was commenced, or during its pendency. (Luco v. Bank, 70 Cal. 339.) Upon the return of the cause to thp court below, Luco filed an amendment to the complaint, in which he set up for the first time the said contract between said Agustín Olvera, deceased, and said Hartman, and the conveyance -by Hartman of his interest, under said contract, to Luco, and claimed an equitable interest in the land. The court gave judgment for defendant De Toro, and the plaintiff Luco appeals. The amendment to the complaint was filed December 13, 1886, and the original complaint was filed August 8,1882. On the third day of February, 1869, Agustín Olvera was the owner and in possession of an undivided interest of more than one half of said rancho of the ex-mission of San Diego. On that day he entered into a written contract with Isaac Hartman, who was an attorney at law, by which Hartman undertook and agreed “ to procure a patent from the United States for the lands of the ex-mission of Sa.n Diego, county of San Diego,” etc.; and Olvera agreed to pay certain moneys for expenses, and also, when the patent had been obtained, to convey to Hartman a certain undivided interest in said lands. On the twenty-third day of March, 1879, Hartman assigned and conveyed all his right which he obtained under said contract to said lands to the plaintiff herein, Juan M. Luco. The patent was issued by the United States on the first day of September, 1876; and if plaintiff Luco, by virtue of said contract and said conveyance from Hartman, is entitled to any interest in said lands, he is entitled to the quantity first set apart *426to him by the court below. Neither Hartman nor Luco was ever in possession of any part of said rancho under said contract. Leaving minor matters out of view, there are two main questions in this case; and the correct decision of either of them in favor of the respondent must be followed by an affirmance of the judgment. And these questions are, — 1. Did Hartman and his assignee Luco, comply with their agreement in said contract to procure a patent for said lands? and 2. If they did, then was appellant’s cause of action under said contract barred by the statute of limitations?
1. It is contended by appellant that finding 5 is to the effect that the contract was complied with; and respondent contends that in said finding the court finds that the contract was not complied with. If we were compelled to decide this point, we would probably have to hold that the finding is contradictory and insufficient; but, with our view of the second main question in the case it is unnécessary to determine the character and effect of said finding 5.
2. The court found, and found correctly, that appellant’s cause of action was barred by the statute of limitations. The contention of appellant that the findings of the court on the subject of limitation are insufficient, because mere conclusions of law, cannot be maintained. The averments of the answer are, that the cause of action stated in the complaint is barred by the provisions of section 337, and also by the provisions of section 343, of the Code of Civil Procedure; and the finding of the court is, that said cause of action was barred by the provisions of said sections before the commencement of the action. The finding “is as broad and specific as the plea,” and is therefore sufficient. (Oakland Gas Light Co. v. Dameron, 67 Cal. 663; Duff v. Duff, 71 Cal. 513.) And we think that the finding is sustained by the evidence and correct in law. Assuming that the right set up by an appellant can be considered and adjudicated in an action for the partition of real property, still it is, in its nature and essence, only a right to enforce the specific *427performance of a naked agreement to convey land. We do not see how the contract between Olvera and Hartman established these continuing — and, we might say, eternal—trust relations so strenuously contended for by counsel for appellant. By that contract no special trust was placed by one of the parties in the other. The property of one was not given to the other to be used by the latter for the benefit of the former. It was a mere covenant by Olvera that if Hartman would perform certain services, he, Olvera, would, in consideration of such services, convey to Hartman á certain interest in certain lands. If, therefore, there was ever a performance of the services by Hartman, or his grantee, Luco, he had a right to the conveyance at the time of that performance; and at that time his cause of action accrued. But if he performed those services at all (that is, if he procured a patent for the rancho), he must have done so on or prior to the first day of September, 1876; for on that day the patent for the rancho was issued. His cause of action therefore accrued on September 1, 1876; and this action was not commenced until August 8,1882, — nearly six years afterwal ds. But the action was barred in four years, under either section 337 or section 343 of the code. Moreover, if a demand for a conveyance had been necessary, ■—and no such demand was necessary, — it is found that on November 5, 1877, appellant demanded of the executor of Agustin Olvera, deceased, that he convey to appellant the said interest in said lands claimed under said contract, and that said executor refused to do so. That was more than four years before the commencement of this action. (And it may be remarked that appellant’s cause of action, founded upon his alleged equitable interest in the land, was not set up until the time of the amendment to the complaint, which was December 13, 1886.) And again, if the relation between Olvera and Hartman could be considered in any sense a trust, the court finds, and we think upon sufficient evidence, that from the year 1874 said “ Agustín Olvera in his lifetime, and his, representatives after *428his death, always repudiated any obligation under said contract to Hartman or his assignee, Luco, and claimed to have and hold the whole of the interest to which he, Olvera, held the legal title when he died, adversely to Hartman or his assignee, free from any claim on the part of either under said contract.” The cases relied on •by appellant are cases where the vendee was in possession, and where it was held that the statute does not run so long as the vendee remains in possession with the acquiescence of the vendor. Such was the case of Love v. Watkins, 40 Cal. 548, and others cited. But in these cases a very different principle came into play. In the case at bar neither Hartman.nor Luco was in possession of any land under the contract, and there was nothing for respondent or his decedent to acquiesce in.
Judgment and order denying a new trial affirmed.