Thayer v. White , 3 Cal. 228 ( 1853 )

Heydenfeldt, Justice,

delivered the opinion of the court. Wells, Justice, concurred.

Of the various assignments of error, there is but one which cannot be deemed frivolous.

The answer sets up that the plaintiff was not the lawful owner of, and has no title to, the land conveyed.

To this objection the plaintiff urges, that his contract was only to execute and deliver a warrantee deed, and to require more, would be to impose on him an obligation which he had not assumed.

The object of the party in bargaining for a warrantee deed to the land, is to obtain a good title, and if this object cannot be attained, the contract is at an end.

The question to be determined is, whether such a defence is good in an action of this kind, and whether the defence as set up is good in this action.

In countries where the equity and common law jurisdictions are separate systems, it is well settled that such a defence at common law is not admissible, and the usual practice is for defendant to file his bill in chancery, where by proper allegations, he may enjoin the suit at law, and obtain a rescission of the contract. In this State we have a mixed system. The jurisdiction of the law and equity are blended together, and it is a clear design in our statute that circuity of action shall be avoided, and that the right of each party, whether legal or equitable, in respect to one subject-matter, shall be determined in one action, whatever may be the form in which it-is begun.

This departure, however, from the mode of practice which prevails in most common law states, must not be understood to affect or alter, in any degree, the settled principles of decision at common law or in equity. On the contrary, the facts of each case, as disclosed by the complaint and answer, must determine its character as belonging to the one system or the other, and it must be tried and decided accordingly. The defence attempted to be set up in this case, belonging as it does to the jurisdiction of chancery, the case at once becomes a case in equity, and must be determined by the principles of that system. Treating it accordingly, the defendant’s averments are insufficient to enable him to avail himself of the doctrine of rescission. To do so, it has always been held necessary to aver, and to show, a paramount title in another; this has not been done in the present case, but the defence is made to rest upon the naked allegation that the plaintiff has no title.

Such loose pleading is not allowable, because it fails to put the other party upon notice of what he has to meet, and according to the well-established doctrine that all pleading must be taken most strongly against the pleader, the averment must be treated as irrelevant, if not frivolous.

Judgment affirmed.