of the Code of Civil Procedure. The action herein is authorized by section 749, Code of Civil Procedure, and the parties who may unite in the prosecution of it are provided for by section 381, as above stated. That this action is properly prosecuted, and that the plaintiffs were properly joined, and that the trial court did not err in overruling the defendants' demurrer for misjoinder, seems to us beyond question. (Gillespie v. Gouly, 152 Cal. 643.) A number of other cases might be cited in support of the ruling of the trial court, but this one seems sufficient.

The second question for determination is, was the ruling of the trial court correct in sustaining the plaintiffs' demurrer to the defendants' cross-complaint? The cross-complaint sought to set up a cause of action for specific performance of the option contract dated March 12, 1910, executed by Rummelsburg and the defendant Grossman, and to enforce the same for the conveyance of the lands and premises herein referred to as against the plaintiffs in this action. Many reasons have been urged by counsel, pro and con, as to the correctness or incorrectness of the ruling of the trial court, but, for the reasons hereinafter stated, only one needs to be considered, as it is determinative of this question.

The option contract referred to bears date of March 12, 1910. The cross-complaint for specific performance was filed December 8, 1913, almost three years and nine months later. On May 6, 1910, Rummelsburg entered into an agreement to convey the lands and premises to George Fleming. This agreement was recorded on the day of its date, less than two months after the date of the option given by Rummelsburg to the appellant Grossman. All that appellants have ever done towards seeking performance of their contract appears in the following allegation: "That the said Grossman, on the 29th day of March, 1910, in writing, demanded of said Rummelsburg a deed of conveyance of said real property, and of the whole thereof, and tendered and offered to pay the purchase price of said property in the sum named and fixed in said agreement, and according to the terms of said agreement, etc." The cross-complainant further alleges: "That no time was fixed in said contract for its performance, or for payment of the purchase price mentioned therein." From which it appears, from the very language of the defendants' crosscomplaint, that the pleader did not state, and the trial court could not conclude, that any valid tender of the money representing the purchase price, to-wit, $80,249.00, had ever been made. It further appears that at the date of the alleged tender the cross-complainant knew that the Hyman Estate did not own all of the premises for which Grossman was demanding a deed of conveyance. This interest belonged to a minor, and, by the defendants' crosscomplaint, was not acquired until the 10th day of May, 1910. After this date, it does not appear that any kind of tender or offer of performance was made by either of the cross-complainants in this action until the 8th day of December, 1913, at which time their pleadings in this action were filed. On the 6th day of May, 1910, the Fleming agreement was made a matter of record, and

the subsequent instruments herein before referred to were from time to time recorded; the plaintiffs went into possession thereunder, notwithstanding which the cross-complainants remained silent and inactive for nearly four years.

[2] Have the cross-complainants lost their right of action, if any, in equity, by reason of laches? We think so. The language of Justice Brewer quoted in the case of Troll v. City of St. Louis, 168 S. W. 175, where the doctrine of laches is thoroughly considered, appears pertinent: "No doctrine is so wholesome, when wisely administered, as that of laches. It prevents the resurrection of stale titles, and forbids the spying out from the records of ancient and abandoned rights. It requires of every owner that he take care of his property, and of every claimant that he make known his claims. It gives to the actual and longer possessor security, and induces and justifies him in all efforts to improve and make valuable the property he holds. It is a doctrine received with favor, because its proper application works out justice and equity, and often bars the holder of a mere technical right, which he has abandoned for years, from enforcing it when its enforcement will work large injury to many."

It may be noted, in passing, that the cross-complainants do not allege that they have suffered any injury or any pecuniary loss by reason of the failure of Rummelsburg to convey, or that they will suffer any injury or pecuniary loss unless specific performance is enforced herein. The fact that the Civil Code provides that it is presumed that the damages for failure to comply with the terms of a contract for the sale of real estate will not furnish adequate compensation, does not relieve the pleader from showing such damages and stating a cause for the equitable interposition of the court.

(Herzog v. A. T. & S. F. Ry., 153 Cal. 502, and cases cited.)

[3] The defense of laches can be taken advantage of by demurrer. Such a defense is, in substance, that the complaint does not show equity, or fails to state facts sufficient to constitute a cause of action. The supreme court of this state has so held in Marsh v. Lott, 156 Cal. 643. It was there also held that "no artificial rule as to the lapse of time or the circumstances which will justify the application of the doctrine of laches can be laid down; that each case, as it arises, must be determined by its own circumstances. If, after the vendor's violation or express repudiation of the contract of sale, the vendee delays to proceed in the enforcement of the contract for such a length of time as to constitute acquiescence in vendor's breach, or to create a presumption of abandonment of his right to specific performance, relief in equity will be denied".

In the Lott case the delay was for a period of three years, five months and a few days, being less than the period which has elapsed in the case at bar. The fact that Rummelsburg may have had no just reason for violating the terms of his agreement with the cross-complainants (assuming, for the purposes of argument, that such is the case-the terms of the agreement are not before the court, and cannot be considered), does not alter the situation.

The record shows that Rummelsburg, after giving the option contract to the defendant Grossman, immediately contracted with one Fleming, that the premises were thereafter conveyed to Fleming, and by mesne conveyance passed to the plaintiffs, all of these instruments being of record, and the plaintiffs coming into possession under the instruments referred to. To these facts the language of Mr. Pomeroy, in his work on Specific Performance, is applicable: "Where one party, even without any just or sufficient reason for so doing, and as a mere act of arbitrary will, notifies the other that he will not perform the contract, shall treat it as at an end-acquiescence by the party notified will cut off the latter's right of enforcement, and this acquiescence will be sufficiently shown by a delay in commencing a suit which would otherwise be too short to prejudice his rights." Or, as otherwise stated in 26 Am. & Eng. Ency. of Law, "If, after the violation or express repudiation of the contract, the party seeking specific performance delays to proceed for such a length of time as to constitute acquiescence in the breach, or a presumption of abandonment of his right to specific performance, relief in equity will be denied".

The statute of limitations, which would apply to an action at law, does not determine the question of laches in equity, where one is seeking specific performance.

(Marsh v. Lott, supra, and cases there cited.)

The question of laches in actions for specific performance has been passed upon a number of times by the supreme court of this state, and all of them enforce the doctrine, even though the action wou'd not be barred if it were one at law.

Fowler v. Sutherland, 68 Cal. 414, the complaint showed that a period of two years and three months had elapsed before specific performance was sought. No relief was granted, even though the party seeking specific performance had been let into possession.

In O'Donnell v. Jackson, 69 Cal. 622, relief was denied on the ground of laches where a period of a little over three years had elapsed. The party seeking specific performance had in this case also taken possession of the premises in controversy.

In Requa v. Snow, 76 Cal. 590, it was held that "specific performance of a contract for the sale of land at the instance of the vendee will be refused when there has been an unexplained delay by him of upwards of three years in performing the conditions of the contract with respect to the payment of the purchase price". This case cites with approval the case of Green v. Covil laud, 10 Cal. 317, where it was held that a delay of between twenty-one and twenty-two months was sufficient to bar the remedy on the grounds of laches.

The only explanation offered by the defendants for their delay herein is that in the summer of 1910 (date not stated), Rummelsburg left the state of California, and did not return until the spring of 1911 (date not stated), and that Rummelsburg never offered to convey, and that no time is fixed in the contract for its performance or for the payment of the purchase price.

As before stated, within two months after the execution of

the option contract delivered to Grossman, Rummelsburg entered into an agreement of sale with other parties, and thereafter conveyed to them. The contract held by the defendants fixed no time for payment, in which case the law provides that it must be within a reasonable period.

The absence of Rummelsburg from the state of California was, at most, only for a few months, and offered no reason why the defendants did not promptly institute action to enforce their right to specific performance, if any existed under their contract, immediately after the agreement of sale entered into between Rummelsburg and Fleming, through whom the plaintiffs claim. During all the period referred to herein, the plaintiffs, as appears from the pleadings and the judgment roll, were in possession of the premises in dispute, and their title should not be disturbed unless valid reasons exist therefor, especially where the cross-plaintiffs do not even allege that they have been injured.

For the reasons herein given, we are of the opinion that the defendants' cross-complaint does not state facts sufficient to constitute a cause for specific performance, and that the question of laches was properly raised by demurrer.

The judgment of the lower court is therefore affirmed.
PLUMMER, J., pro tem.

We concur:

CHIPMAN, P. J.
BURNETT, J.

Civil No. 1578. Third Appellate District. December 15, 1916 SUPERIOR CALIFORNIA FRUIT LAND COMPANY et al., laintiffs and Respondents, v. E. F. MAY, Defendant and Appellant.

Appeal from the Superior Court of Colusa County-H. M. Albery, Judge.

For Appellant-R. H. Countryman.

For Respondents-Deligne & Jones; H. T. Hiatt, of Counsel. This action, No. 1578, is a companion cause of action to No. 1577, this day decided, and for the reasons therein given the judg ment in this action is hereby affirmed.

We concur:

CHIPMAN, P. J.
BURNETT, J.

PLUMMER, J., pro tem.

Civil No. 1553. Third Appellate District. December 15, 1916. VALLEJO AND NORTHERN RAILROAD COMPANY (a Corporation), Plaintiff and Respondent, v. REED ORCHARD COMPANY (a Corporation) et al., Defendants and Respondents; SACRAMENTO AND YOLO BELT LINE (a Corporation) et als., Defendants, and S. KOMANO, Defendant and Appellant.

[1] EMINENT DOMAIN-AWARD OF DAMAGES-VALUE OF FRUIT CROP TENANT NOT ENTITLED TO.-In an action for the condemnation of land under lease, where the tenant of the property is named as a defendant and fails to appear after service of process, and no evidence is introduced as to the value of the crop growing on the land nor any evidence that the tenant was prevented from harvesting the crop, he cannot recover of the landlord the net value of such crop out of the money awarded to the latter.

Appeal from the Superior Court of Yolo County-W. A. Anderson, Judge.

For Appellant-White, Miller, Needham & Harber.

For Defendants and Respondents-C. E. McLaughlin, Arthur C. Huston.

For Respondent-Garret McEnerney, Walter Rothchild. The question involved respects the claim of appellant to share in the damages awarded for condemnation in the above entitled action. Komano was a tenant in possession of the Reed orchard property under a five-year lease expiring November 1st, 1912. The fee was in the said Reed Orchard Company. The condemnation proceedings were commenced in 1910 and tried in 1912, the preliminary order of condemnation being entered April 18th, and the final decree of condemnation April 29, 1912. Komano was named as one of the defendants and he was personally served but he did not appear in the action. As to him the court found: "That the said defendant, S. Komano, is in the possession of the property herein condemned and also the larger tract or parcel of which the same is a part, as the tenant of the said defendant Reed Orchard Company, a corporation, but that the tenancy and possession of the said S. Komano is by virtue of a certain indenture of lease but that under and by virtue of the terms of the said lease, it was by and between the said Reed Orchard Company and the said S. Komano understood and agreed that the said lease should be terminated in the event that the said land herein condemned, and the said larger parcel, or any part thereof, should be condemned by any judgment of condemnation and that the estate, right, title and interest of the said S. Komano therein is of no value." The rental under the lease was $7500.00 per year, payable $3750.00 January 1st and $3750.00 July 1st of each year. On January 1, 1912, Komano made the semi-annual payment and there is no dispute that he proceeded as required by the lease to cultivate, prune, spray and otherwise care for and protect the orchard and fruit crops growing on the premises. An appeal was taken from the decree of condemnation and pending the appeal, to-wit: on July 1, 1912, Komano and the plaintiff and others entered into an agreement whereby the crops of 1912 were harvested and the proceeds applied to the payment of the July