Opinion
Appeal from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. William P. Wade, Judge.
COUNSEL:
A vendor cannot recover in ejectment against a vendee who takes possession under the contract until the vendee is placed in default. (Willis v. Wozencraft , 22 Cal. 617; Hoskins v. Swain , 61 Cal. 338; Hicks v. Lovell , 64 Cal. 20; 49 Am. Rep. 679.) Objections to the deed offered should have been stated at the time of the tender. As they were not they were waived. (Civ. Code, sec. 1501; Ward v. Flood , 48 Cal. 47; 17 Am. Rep. 405; Code Civ. Proc., sec. 2075; Oakland Savings Bank v. Applegarth , 67 Cal. 87; Gregg v. Von Phul, 1 Wall. 274; Bigler v. Morgan , 77 N.Y. 312; Congregation Shaaer Hash Moin v. Halladay , 50 N.Y. 664; Kelley v. Union P. Ry. Co ., 16 Col. 455.) The condition coupled with the plaintiff's offer, being one which he had no right to make, vitiated the offer. (Civ. Code, sec. 1494.) An agreement to give a good and sufficient deed, with no covenants as to execution, relates only to the deed being sufficient in form to convey the title. (Brown v. Covillaud , 6 Cal. 566, 573; Adams v. Warren Ins. Co ., 22 Pick. 163; Stone v. Fowle, 22 Pick. 173; Packard v. Usher, 7 Gray, 531; Green v. Covillaud , 10 Cal. 323; 70 Am. Dec. 725; Tinney v. Ashley, 15 Pick. 552; 26 Am. Dec. 620.)
E. C. Bower, for Appellant.
George W. Knox, for Respondent.
The defendant, by conveying his property to his father, put it out of his power to complete his contract with the plaintiff, and thereby repudiated and abandoned the contract. (Burks v. Davies , 85 Cal. 113; 20 Am. St. Rep. 213; Lendring v. Lannon, 2 Eq. Cas. Abr. 680; Sanders v. Lansing , 70 Cal. 429, 430; Woodbury v. Woodbury , 47 N.H. 11; 90 Am. Dec. 555; Wendell v. Johnson , 8 N.H. 220; 29 Am. Dec. 648; Alton v. Pickering , 9 N.H. 494; Smith v. Stewart, 6 Johns. 47; 5 Am. Dec. 186; Bank of Columbia v. Hagner, 1 Pet. 466; Wolf v. Marsh , 54 Cal. 228; Poirier v. Gravel , 88 Cal. 83; Easton v. Montgomery , 90 Cal. 314; 25 Am. St. Rep. 123.) By such act defendant waived a tender by plaintiff and made it unnecessary. (Civ. Code, sec. 3532; Englander v. Rogers , 41 Cal. 420; Dennis v. Strassburger , 89 Cal. 588.)
JUDGES: In Bank. Beatty, C. J. McFarland, J., and Van Fleet, J., concurred. Temple, J., concurring. Harrison, J., concurred in the above.
OPINION
BEATTY, Judge
The material facts of this case as found by the superior court are as follows: In August, 1887, the plaintiff, Royal, was the owner of a house and lot in Los Angeles, and the defendant, G. L. Dennison, had a contract upon which he had made a first payment for the purchase of a tract of land in or near Pasadena, which he had subdivided or was about to subdivide into town lots. Under these circumstances they made a verbal contract by which Royal agreed to convey his house and lot in Los Angeles to Dennison in exchange for four of the lots in said tract. The house and lot were estimated at $ 4,000, and the lots at $ 1,000 each, but whether this was their true value does not appear.
Shortly after making this contract of exchange Dennison, with the knowledge of Royal and apparently with his consent, took possession of the house and lot in Los Angeles, where he [42 P. 40] continued thereafter to reside, and upon which he expended money and made improvements to the value of $ 150. In January, 1888, Royal selected the four lots which he was to receive, but he took no actual possession of them. No time was fixed by the agreement for making the conveyances by which the exchange was to be effected.
G. L. Dennison never completed the purchase of the tract at Pasadena, but in October, 1888, by his grant, bargain, and sale deed conveyed all his interest therein to his father, Lucius Dennison, who thereafter and prior to July 8, 1890, made the final payments under the contract and received a conveyance from the owner.
Between December, 1887, and May, 1889, Royal applied to Dennison for various loans and advances which were made by Dennison to the amount of $ 750, and it was agreed that these loans should be secured upon the said lots which Dennison was to convey. On the eighth day of July, 1890, Royal tendered to G. L. Dennison a deed of conveyance of his house and lot in Los Angeles, but, instead of demanding from Dennison a conveyance of the four lots, he demanded payment of $ 4,000 in money, less $ 750 which he had received from Dennison. He made this demand upon the claim that he was to receive $ 4,000 in cash for his house and lot, and that the $ 750 which the court finds were loaned on the security of the lots were a part payment. Dennison, upon the claim, which is sustained by the finding of the court, that his agreement was only to convey the four lots, and that the $ 750 were in fact loaned, refused to pay the money demanded by Royal, but tendered him a deed of the four lots, which was duly executed and acknowledged by his father, Lucius Dennison, who, as above stated, had acquired the title from the former owner, and in whom it stood at that date, clear and unencumbered, so far as appears. Royal, however, refused to accept the deed tendered or to deliver his deed except upon condition that Dennison should pay him $ 3,250 in cash. This being refused, he thereupon demanded possession of his house and lot, and afterward, in October, 1890, commenced this action of ejectment to recover the same. Dennison answered, defending upon the ground that he was lawfully in possession under his contract, which he had offered to perform upon his part by the tender of a deed conveying the title to the four lots, which tender he renewed in his answer.
This is, in brief, the substance of all the material facts found by the superior court, except that judgments were rendered against G. L. Dennison in the superior court of Los Angeles county, where the four lots are situated, as follows: May 6, 1890, for $ 20; September 25, 1890, for $ 2,500; March 29, 1889, for $ 2,174.55; and that on September 27, 1890, a decree was obtained by one of his judgment creditors annulling the deed by which he had conveyed the four lots to his father, upon the ground that it was fraudulent as to creditors. Upon these facts the superior court gave judgment for the plaintiff, from which, and from an order denying his motion for a new trial, the defendant appeals.
The conditions to be performed under the contract between plaintiff and defendant were mutual and concurrent, and neither could be put in default except by a bona fide offer to perform upon the part of the other.
Royal did offer to perform his part of the contract by tendering a deed of his house and lot, but the offer was coupled with a condition which he had no right to impose. His counsel concedes that, for this reason, his tender was insufficient in itself to give him a right of action; but he contends that no offer of performance upon his part was necessary, for two reasons: 1. Because G. L. Dennison, by his grant, bargain, and sale deed to his father, in October, 1888, by which he conveyed all his interest in the tract, of which the four lots were a part, had put it out of his power to perform his part of the contract, and that he had thereby repudiated and abandoned it; 2. Because at the time of his tender G. L. Dennison was unable to perform, and therefore a tender was unnecessary.
As to the first proposition, it is opposed to the decision of this court in Joyce v. Shafer , 97 Cal. 335, which was approved in Shiveley v. Semi-Tropic etc. Co ., 99 Cal. 259, and in the case of Garberino v. Roberts, ante, p. 125.
This is really a stronger case against the proposition that the conveyance by the vendor to a third party of land contracted to be sold is necessarily an abandonment and repudiation of his contract than either of those cited, for it appears that the very object of the transfer by G. L. Dennison to his father of his right to the Pasadena tract was to get the title under his control, and that his father was ready and willing to convey the lots according to the terms of his contract with Royal.
It follows that Royal was not excused from making a proper tender unless it clearly appears that Dennison would have been unable to perform upon his part. It does appear that G. L. Dennison, at the moment Royal's demand was made, did not have the title to the lots, but it also appears that his father did have the title clear and unencumbered, and that he was ready and willing to make, and that he did tender, to Royal a deed which would have transferred the title to him.
This, however, Royal contends he was not bound to accept, because Lucius Dennison was a stranger to the contract, and because he was entitled under the contract to a deed from G. L. Dennison direct. As against this proposition appellant cites the case of Gaven v. Hagen , 15 Cal. 208, in which, he contends, this court made a decision to the contrary effect.
That case, however, does not, in our opinion, clearly decide the proposition for which the appellant is contending. It is said in the opinion, and is undoubtedly true, that a conveyance by the grantee of a vendor of real property, together with an assignment of the vendor's covenants, gives to the vendee all that he [42 P. 41] would obtain by a literal performance of the vendor's contract, but it was not decided, and the case did not require a decision, that the vendee is obliged to accept such substantial performance in place of strict and literal performance.
And, even if it had been so decided, section 1731 of the Civil Code, since enacted, prescribes the rule that: "An agreement to sell real property binds the seller to execute a conveyance in form sufficient to pass the title to the property." Under this provision of the code it may be that the vendee of real property is entitled, if he chooses to stand upon his strict legal right, to demand the literal performance of the vendor's contract to convey, and that he cannot be compelled to accept a substantial compliance by a conveyance from a third party. But, if this be conceded, we are also of the opinion that when in a case of this kind, where performance only becomes due upon demand and offer to perform concurrent conditions, and at the time the demand and offer are made by the vendee the vendor tenders the deed of a third party which will convey a perfect title, the objection to such deed should be specified by the vendee in order that the vendor may have a reasonable opportunity of obviating it. (Civ. Code, sec. 1501.) For in such a case, where the holder of the title is willing and ready to convey to the vendee at the request of the vendor, it is to be presumed he would be equally ready and willing to convey to the vendor in order that he might literally comply with his contract.
In this case it does not appear that Royal objected to the deed tendered because it was the deed of Lucius Dennison, and not the deed of G. L. Dennison, his vendor. On the contrary, it appears that he refused the deed because he was claiming payment in cash, and having failed at that time to make his objection to the sufficiency of the tender he ought not to be allowed to make it now, unless the circumstances have so changed as to give him an additional right.
In other words, we hold that what occurred on July 8, 1890, did not entitle Royal to maintain this action, not only because his own offer to perform was coupled with a condition which he had no right to impose, but because he failed to specify the objection he now makes to Dennison's tender -- an objection which he could probably have obviated if made. It is contended, however, that since he could not have obviated this objection without taking a conveyance of the four lots from his father, they would have immediately become subject to the liens of the several judgments above enumerated, and that he would not have been able, therefore, to convey a clear title. But what we have said with respect to the other objection applies equally to this; it required to be specified in order that Dennison might have a reasonable opportunity to obviate it; for there is no conclusive presumption that he could not have paid and satisfied the judgments against him, and thereby cleared off the liens of his creditors. If we are correct in this view, it disposes of the further contention of respondent that the decree of September, 1890, annulling the deed of October, 1888, from G. L. Dennison to his father, on the ground that it was fraudulent as to creditors, put it out of the power of either of them to convey a clear title to the lots. Upon a proper demand and offer of performance by Royal the Dennisons might have procured a satisfaction or release of the judgment liens, and they were entitled to an opportunity to do so.
The only answer to this proposition that suggests itself is that the failure of defendants to satisfy these judgments before the conclusion of the trial of this action, so as to make their renewed and continuing tender of their deed good, is proof that they could not, or would not, clear the title. It may be that the circumstances are sufficient to prove the fact, but it is not found by the superior court, and ought not to be assumed in order to aid a recovery by a plaintiff who has never offered to do what he was in equity bound to do.
He, as appears by the findings, borrowed from Dennison $ 750, which he agreed should be secured on these four lots. The only construction to be placed upon this finding is that the parties to the original verbal contract for an exchange of lands, upon a new consideration, added another term to the contract to the effect that Royal would not only convey his house and lot, but would repay the $ 750 before demanding a conveyance of the four lots. This he has never at any time offered to do, and the effect of the present judgment, if sustained, would be to restore to him his house and lot, and to leave Dennison without any security for his money. We think he should pay or tender this money, as well as a conveyance of the house and lot, in order to put Dennison in default.
The judgment and order are reversed, and cause remanded.
CONCUR
TEMPLE
Temple, J., concurring. I concur in the judgment and in the opinion except in what is said in regard to the loan of $ 750. I think this was a distinct contract, and in no sense a modification of the contract for the exchange of land. It was an attempt to create a mortgage by parol upon the equitable title of Royal to the land which Dennison had agreed to convey. Not being in writing it was void.