by a recital as follows: "Leaving a balance. ... to be paid on said purchase, which, by the terms of this sale, is to be paid in three equal payments, with interest at the rate of ten per cent per annum till paid, in like gold coin, within six, twelve, and eighteen months from date hereof. If paid as above stated, with all taxes, assessments, and charges of every nature that are or may be levied thereupon before the final payment and costs of conveyance, the above-named W. Bradford will be entitled to a deed for the above-described lot; otherwise this agreement becomes null and void, and the amounts now paid, together with all improvements on said land made, shall be forfeited. . . . . If forfeited, the said W. Bradford shall thereafter be, and he hereby consents to be, tenant of D. W. Parkhurst, liable to be dispossessed upon three days' notice," etc.

...

The contracts are signed only by the vendor.

It was not shown, or attempted to be shown, that defendant had failed or refused to perform any part of his contract. On the other hand, it appears from the evidence that plaintiff, after having made the first payment, on being asked whether he intended to perform, said that he would make no more payments, and "I will see my attorney, and would like to see you get it."

The evidence also shows that defendant tendered to plaintiff a deed in pursuance of the contract, but the tender was after the time limited for performance; and appellant contends that time being of the essence of the contract, the tender was not effectual, and that defendant was in default; in short, that there had been a mutual abandonment and rescission of the contract, under the rule laid down in Cleary v. Folger, 84 Cal. 316; 18 Am. St. Rep. 187. As that case has been overruled on this point by the recent case of Newton v. Hull, 90 Cal. 487, this contention must fail.

Now, if we concede the law to be as appellant contends, that the contract could not have been enforced by defendant, because the agreement of the plaintiff was not put in writing, it does not follow that this suit can be maintained. Although defendant might not have been able to maintain an action for the purchase-money, he was compelled to accept the money when tendered as payment upon the contract. This follows, necessarily, if it could have been enforced by plaintiff. The payment was founded upon a valuable consideration, and the consideration has not failed.

Appellant relies upon Drew v. Pedlar, 87 Cal. 443, 22 Am. St. Rep. 257, as sustaining his position. But that case does not go to the extent of holding that a vendee can elect to consider the contract at an end, and recover what he has paid, when the vendor has not abandoned the contract. On that point that decision is explained by the more recent case of Phelps v. Brown, 95 Cal. 572, as follows: "When a contract of sale and purchase of lands is abandoned or rescinded by the parties, the vendee, though in default, may recover back installments paid of the purchase-money, less the actual damage to the vendor occasioned by his breach of the contract." This proposition cannot be controverted. It is old law: Palmer v. Temple, 9 Ad. & E. 508. The debatable point before these decisions was, whether, in all cases when one party to a contract declines to go on with it because some material condition precedent has not been performed by the other party, he thereby abandons it so as to entitle a recovery for sums paid. No such question is involved here. The payments were made in part consideration for a conveyance which the plaintiff can have whenever he chooses to comply with his contract.

I advise that the judgment and order be affirmed.

BELCHER, C., and HAYNES, C., concurred.

For the reasons given in the foregoing opinion, the judgment and order are affirmed.

PATERSON, J., HARRISON, J., Garoutte, J.

VENDOR AND PURCHASER. -When a vendee enters upon the performance of a contract to purchase, and after paying a part of the consideration, makes inexcusable default, he cannot maintain an action to recover the money so paid: McManus v. Blackmarr, 47 Minn. 331. The fact that the vendor, within thirty days after the making of the contract, did not tender the purchaser a deed does not show a default of the vendor entitling the purchaser to rescind a contract, if the purchaser failed to tender the purchase-money and demand the deed. Neither party can put the other in default except by tendering a performance on his part, unless the other waives the tender, or his conduct renders it unnecessary: Dennis v. Strassburger, 89 Cal. 583. The vendor is not in default until his refusal to convey upon a tender of the purchase-money: Easton v. Montgomery, 90 Cal, 307; 25 Am. St. Rep. 123; even after the last installment is overdue: Newton v. Hull, 90 Cal. 487.

VENDOR AND PURCHASER-UNILATERAL CONTRACTS. The statute of frauds only requires the vendor to sign the contract or memorandum for the. sale of lands: Ballou v. Sherwood, 32 Neb. 666; and such a contract may be enforced by the vendee: Ide v. Leiser, 10 Mont. 5; 24 Am. St. Rep. 17; or if the vendee is the party signing, by the vendor: Miller v. Cameron, 45 N. J. Eq. 95; the general rule being that a unilateral contract is binding only on

the party who signs it, and is binding upon him only during the period for which the privilege of carrying out the contract is granted: Coleman v. Applegarth, 68 Md. 21; 6 Am. St. Rep. 417. Where the contract is signed by the vendor only, the payment of a deposit by the purchaser is a sufficient acceptance by him of the terms of the contract: Benson v. Shotwell, 87 Cal. 49; and the purchaser is entitled to a conveyance upon his payment or tender of the agreed price to the vendor at any time within the period stipu. lated, and may enforce a specific performance of the agreement as soon as such payment or tender is made: Warner v. Darrow, 91 Cal. 309.

VENDOR AND PURCHASER-ENFORCEMENT OF THE CONTRACT AFTER THE TIME OF PERFORMANCE IS PASSED. When the time for payment of the purchase-money and for delivery of the deed has passed without performance, or tender thereof, by either party, the time for performance becomes indefi. nite, and whichever of the parties first desires to enforce the contract, he must perform, or offer to perform, his part of it, as a condition precedent: Boyd v. McCullough, 137 Pa. St. 7. Where time is of the essence of the contract for payments on the part of the purchaser, and the vendor is released from all obligation upon his default, the failure of the purchaser to make the payments provided for does not render the contract void as to the vendor, or prevent its enforcement by him; and the fact that the vendor did not tender a deed and demand the purchase price until some months subsequent to the date fixed by the contract for final payment, does not prevent the vendor from claiming a specific performance of the contract: Banbury v. Arnold, 91 Cal. 606.

MOFFATT v. BULSON.

[96 CALIFORNIA, 106.]

PUBLIC LANDS. —A CONTRACT TO SELL AND CONVEY LANDS taken up under the homestead laws, made before final proof, is illegal and void. CONSIDERATION, ILLEGALITY OF, WHEN MAY BE SHOWN. -The merger of an oral contract for the sale of land, in a conveyance and mortgage executed in pursuance of such contract, cannot prevent the maker of a promissory note secured by such mortgage from showing that it was executed in pursuance of such contract and was based upon an illegal consideration.

CONSIDERATION OF A DEED may be proved by parol to be wholly different from that expressed therein.

ENTIRE CONTRACT ILLEGAL IN PART. - If an oral agreement is made for the sale of land, one part of which the vendor had filed upon under the desert-land act, while to the residue he had a perfect title, and such agreement is afterwards consummated by a conveyance of the land to which the title was perfect, and the delivery of possession of the whole tract, and a further agreement is made that as soon as title can be procured for the other tracts they will also be conveyed, and a note and mortgage are given for the balance due, the contract is entire, and, being partly founded upon an illegal agreement for the conveyance of the lands to be acquired, is, by the code of California, wholly void, and the note and mortgage cannot be enforced, though the mortgagee, after their execution, acquired title to the whole property.

PLEADING ILLEGALITY OF CONSIDERATION. — If an answer contains allegations which, if true, show that a contract for the sale of land was founded upon an illegal consideration, this is a sufficient pleading of such illegal. ity, though the answer complains of the non-performance of the contract. E. T. Hogan, and Reddy, Campbell, and Metson, for the appellant.

Goodwin and Goodwin, for the respondent.

HAYNES, C. This action was brought to foreclose a mortgage made by respondent to appellant. The note and mortgage were made March 5, 1888, the note being for five thousand dollars, payable in annual installments of five hundred dollars, together with annual interest on the principal unpaid at ten per cent per annum. The answer alleged that on December 22, 1886, plaintiff was in the possession and actual occupancy of a certain ranch known as the Moffatt and Rable ranch, containing 560 acres, 80 acres of which he had filed upon under the desert-land act; that another part of said ranch, containing 160 acres, plaintiff had filed upon under the homestead act; and that plaintiff had title in fee to the remaining 320 acres, but had not made final proof or payment for either of said tracts of government land; and that plaintiff also owned certain personal property then upon said ranch, consisting of horses, farming implements, furniture, etc.; that on said twenty-second day of December, 1886, plaintiff and defendant made an oral contract, whereby plaintiff agreed to sell to defendant the whole of said ranch and personal property for the sum of $10,000, and to convey to defendant said 320 acres to which he had title, and deliver said personal property, and to put defendant in possession of the whole of the ranch, upon the payment of one half of said purchasemoney, at which time defendant was to execute to plaintiff his promissory note for the remaining $5,000, and a mortgage upon the 320 acres so conveyed to him, to secure said note, and that plaintiff further agreed to obtain title as soon as possible to said tracts of government land, and as soon as he had done so, to convey them to defendant; that on March 5, 1887, he paid plaintiff $5,000; that plaintiff then conveyed to him said 320 acres, and delivered to him the possession of all said ranch and personal property, and defendant made and delivered said note and mortgage upon which this suit was brought; that on the 24th of March, 1887, plaintiff made final proof and payment upon said homestead entry, and obtained his certificate of purchase thereof, and on Septem

AM. ST. REP., VOL. XXXI. -13

ber 24, 1888, he made final proof and payment under his desert-land entry, and obtained a certificate of purchase of the same. He further alleged, that prior to March 5, 1888, and at sundry times afterwards, he demanded of plaintiff a conveyance of said desert-land and homestead tracts, but that plaintiff then and ever since refused to convey the same. It also appeared from the complaint, as well as from the answer, that on August 4, 1888, defendant paid on the note and mortgage $1,040.66. The court found upon all the issues raised by the answer in favor of defendant, and as conclusions of law found that the contract was entire; that it was illegal, so far as it related to the homestead land; that plaintiff and defendant were equally in the wrong in entering into said contract; that the consideration of said note and mortgage could not be enforced; and that the action should be dismissed, without costs. The appeal is taken from the judgment dismissing the action, upon the judgment roll alone.

That a contract to sell and convey lands taken up under the homestead laws, made before final proof, is illegal and void is not disputed: U. S. Rev. Stats., sec. 2262. The learned counsel for appellant contend, however, that the oral agree ment was void under section 1624, subdivision 5, of the Civil Code, as well as illegal under subdivisions 1 and 2 of section 1667. Upon these propositions, they contend that as all the negotiations, including the offer of defendant to purchase, and the acceptance of the offer by plaintiff, were oral, the execution of the deed by plaintiff, and of the note and mortgage by defendant, on the 5th of March, 1887, not only eliminated the illegal element from the agreement, but that the execution of these instruments constituted the only contract between the parties, and superseded the oral negotiations or stipulations concerning the matter or subject referred to which preceded or accompanied their execution, and that what the subjectmatter of the contract was is to be ascertained from the deed and mortgage; citing Civ. Code, sec. 1625. There is no doubt of the correctness of counsel's contention in a case to which section 1625 of the Civil Code applies; but that section has never been construed to prevent a defendant who has been sued on a promissory note, whether secured by mortgage or not, to show by parol evidence a want, or failure, or illegality of consideration. Section 1962 of the Code of Civil Procedure enumerates all the conclusive presumptions of law, and section 1963 of the same code provides: "All other presumptions