Mesick v. Sunderland , 1856 Cal. LEXIS 135 ( 1856 )

The opinion of the Court was delivered by Mr. Chief Justice Murray.

Mr. Justice Terry concurred.

This was an action of ejectment in the Court below. The plaintiff and defendant both deraign title from a Mexican grant to John A. Sutter, and from him to John A. Sutter, Jr. The deed under which the defendant claims is as follows :

“John A. Sutter, Jr., to Sami. Brannan, Sami. C. Bruce, Julius Wetzlar and James S. Graham. This indenture, made the twentieth day of June, in the year one thousand eight hundred and fifty, between John A. Sutter, Junior, of the city of Sacramento and State of California, of the first part, and Samuel Brannan, of the city of San Francisco, one-fourth interest; Samuel C. Bruce, of the city of Sacramento, one-fourth interest; Julius Wetzlar, of the city of Sacramento, one-fourth interest; James S. Graham, of the city of San Francisco, one-fourth interest, parties of the second part; Witnesseth that the said party of the first part, for and in consideration of the sum of one hundred and twenty-five thousand dollars, ($125,000,) in hand paid by the said parties of the second part, the receipt of which is hereby acknowledged, hath granted, bargained and sold, and by these presents doth grant, bargain and sell unto the said parties of the second part, and to their heirs and assigns forever, all the estate, right, title interest, claim or demand, whatsoever, of him the said party of the first part, either in law or equity, of, in and to the following described property, situate, lying and being in the city of Sacramento, and State of California, consisting of two thousand two hundred (2200) town lots, be the same, more or less, said lots being bounded according to the original plat or plan of said city.”

Here follows the particular description of the several lots and tracts of land, to which this opinion is not intended particularly to apply.

“ Together with all and singular the tenements, hereditaments, privileges, and appurtenances thereunto belonging, or in any way appertaining. To have and to hold the above granted premises unto the said parties of the second part, and to their heirs and assigns, to their use, benefit and behoof forever. And the said party of the first part, for himself, his heirs, executors and administrators doth hereby covenant to and with the said parties of the second part, their heirs and assigns, that the title to the property of the party of the first part, above conveyed or intended to be conveyed by the said party of the first part to the said parties of the second part, their heirs and assigns, he will forever warrant and defend against the claim or claims of all persons whatsoever.

“ And the said party of the first part doth further covenant to and with the said parties of the second part, their heirs and assigns, that he, the said party of the first part, shall, and will make, constitute, and appoint, and by these presents doth make, constitute, and appoint the said parties of the second part, his true and lawful attorneys for him, and in his name, place, and stead, to enter into and take possession of all such lands, tenements, hereditaments and real estate, whatsoever and wheresoever, in the State of California, to and in which the said party of the first part is or may be in any way entitled or interested, and to grant, bargain, sell, and convey the same or any parcel thereof for such sum or price, and on such terms as to them shall seem meet, and for him, the said party of the first part, and in his name to make, execute, and acknowledge and deliver good and sufficient deeds and conveyances for the same, and until the sale or sales thereof, to let and demise the said real estate and to ask, demand, destrain for, collect, recover, and receive all sums of money which now are, or may become due and owing to said party of the first part, his heirs and administrators, executors and assigns, by means of such bargain and sale, or lease and demise, giving and granting unto the said parties of the second part, their heirs and assigns, full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as fully to all intents and purposes as the party of the first part might or could do if personally present. And the said party of the first part, for himself, his heirs, executors, administrators and assigns doth further covenant to and with the said parties of the second part, their heirs and assigns, that he, the said party of the first part, his heirs, executors, administrators and assigns, shall not, nor will sell or in any way dispose, or authorize any other person or persons to sell or in any other way dispose of any lands, tenements, hereditaments, and real estate whatever, to which he, the said party of the first part is or may be in any way entitled or interested or to receive from any person or persons, any sum or sums of money, which are due and owing the said party of the first part, for the sale of any real estate, or in any way impair or revoke the power hereby given to the said parties of the second part, their heirs and assigns, by the said party of the first part, unless the said parties of the second part, their heirs or assigns neglect or refuse to pay the said party of the first part, his heirs, executors, administrators or assigns the just and full sum of twenty-five thousand dollars, ($25,000,) on or before the first day of July, in the year one thousand eight hundred and fifty, and the further sum of twenty-five thousand dollars, ($25,000,) on or before the twenty-ninth day of September, in the year one thousand eight hundred and fifty; and the further sum of seventy-five thousand dollars, ($75,000,) on or before the first day of July, in the year one thousand eight hundred and fifty-one, making in all the just and full sum of "one hundred and twenty-five thousand dollars, ($125,000,) and the said party of the first part, his heirs, executors, administrators and assigns, doth further covenant to and with the said parties of the second part, their heirs, that in case the said party of the second part, their heirs and assigns pay to the said party of the first part, his heirs, executors, administrators or assigns, the just and full sum of twenty-five thousand dollars, ($25,000) on or before the first day of July, one thousand eight hundred and fifty, and the further sum of twenty-five thousand dollars ($25,000,) on or before the twenty-ninth day of September, in the year one thousand eight hundred and fifty, and the further sum of seventy-five thousand dollars, ($75,000,) on or before the first day of July, in the year one thousand eight hundred and fifty-one, making in all the just and full sum of one hundred and twenty-five thousand dollars, ($125,000,) then this instrument is to take effect as a full and complete conveyance in fee of all and singular the lands, tenements, hereditaments, appurtenances, and real estate in the State of California, belonging to, or in which the said party of the first part, his heirs, executors, administrators or assigns, is or are in any way entitled or interested. And the said party of the first part, for himself, his heirs, executors, administrators, and assigns, doth further covenant to and with the said parties of the second part, their heirs and assigns, that in case the said party of the first part, his heirs, executors, administrators, or assigns, in any way neglect or refuse to fulfill the above covenants, made by the said party of the first part, for himself, his heirs, executors, administrators, or assigns, then this instrument is to take effect immediately thereupon, as a full and complete conveyance in fee of all and singular the lands, tenements, hereditaments, appurtenances, and real estate whatsoever and wheresoever in the State of California, belonging to, or in which the said party of the first part, his heirs, executors, administrators or assigns, is or are, in any way entitled or interested.

“ In witness whereof the said party of the first part hath hereunto set his hand and seal, the day and year first above written.

“ Signed, John A. Sutter, Jr.”

It is stipulated by the parties, for the purpose of this action, that the sum of §125,000, the amount of the purchase money, was paid.

The points made by the appellants are : First, that the deed is void, for want of a description of the premises. Second, that the payment of the purchase money, according to the terms of the deed, is a condition precedent to vesting the title, and that a performance of such conditions cannot be presumed; that the act precedent to the vesting of the title must be shown, before the deed will be effectual to bar or protect the claimant under it, as against the grantor’s title. And third, that a subsequent purchaser would not be affected by the deed, though the same were duly acknowledged and recorded.

The first question which naturally suggests itself, is as to the character of the conveyance from Sutter Jr., to Brannan and others.

It is contended by the respondent: first, that the instrument in question is a deed conveying the legal title, in presentí. And second, that if there was not a conveyance of the legal estate, the equitable title passed to the grantees, and the conveyance operates as a covenant to stand seized to their use; and that the equitable title is a good defence to this action.

To ascertain the true nature of this instrument, it will be necessary to take it as a whole. In this connection it may be observed that much "of the severity which formerly governed the construction of instruments of this character has been relaxed; the modern doctrine being, so far as possible, to ascertain the intention of the parties, by taking the instrument as a whole. If we are confined to the strict letter of the deed, then in our opinion it would be void, for want of a sufficient description of the premises conveyed. The words, “ all the estate, right, title, interest, claim or demand, whatsoever, of him, the party of the first part, in law or equity, of, in and to the following described property, situate, lying and being in the city of Sacramento, and State of California, consisting of twenty-two hundred town lots, be the same more or less, said lots being bounded according to the original plan of said city,” are insufficient to designate the lots conveyed, and would apply as well to any other twenty-two hundred lots in the city of Sacramento, as the particular ones now claimed to have been sold. There is .nothing to distinguish them from the bulk of the property of the city; no size, situation, or value, and nothing to put the subsequent purchaser upon notice that they had been sold. To render a deed valid, the rule is, that there must be two things, parties, and a subject matter. As land rests in grant, these essentials must be shown by the grant, viz. : the grantor, the thing granted, and the person to whom granted. The thing granted cannot rest in parol, but must be shown with that distinctness of description that will enable it to be identified. The law requires that the conveyance of land shall be in writing, but is not guilty of the solecism of permitting or providing that the land, to which the title passed, may rest in parol, or need not be in writing.' The general rule upon this subject is, that every conveyance must, either on its face, or by words of reference, give to the subject intended to be conveyed such a description as to identify it; if land, it must be shown so as to afford the means of locating it. Neel v. Hughes, 10 Gill and Johns. Again it is said, if the description in a deed be so imperfect that it cannot be understood what land is intended to be conveyed, the deed is void. 5 Ohio, 454; Worthington v. Hylyer, 4 Mass., 205; Jackson v. De Lancey, 13 Johns.; United States v. Forbes, and Byrch v. United States, 15 Peters; Jackson v. Rosevelt, 13 John.; and Kea v. Robison, 5 Iredell Equity, 373.

It needs no argument to establish the proposition, that the description of the land intended to be conveyed in the instrument before us is insufficient within the rule established by the authorities cited, and that the deed would be void, on account of a patent ambiguity, which cannot be cured by parol evidence. Latent and patent ambiguities are thus defined by Lord Bacon : “ There be two sorts of ambiguities of words; the one is ambiguitas patens, and the other, latens : patens is that which appears to be ambiguous upon the deed or instrument; latens is that which seemeth certain and without ambiguity, for anything that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity. Ambiguitas patens is never holpen by averment, and the reason is, because the law will not couple and mingle matter of specialty, which is the higher account, with matter of averment, which is of inferior account in law; for that were to make all deeds hollow, and subject to averment, and so, in effect, that to pass without deed, which the law appointeth, shall not pass but by deed. Therefore, if a man give land to J. D., et J. S., et hceredibus, and do not limit to whether of their heirs, it shall not be supplied by averment to whether of them the intention was the inheritance should be limited. But if it be ambiguitas latens, then otherwise it is; as if if I grant my manor of S. to J. F. and his heirs, here appeareth no ambiguity at all; but if the truth be that I have the manors both of south S. and north S., this ambiguity is matter in fact; and, therefore, it shall be holpen by averment, whether of them was that the party intended should pass.” See Bac. Max. Reg., 23; 2 Parsons on Cont., p. 72.

This definition would be perfectly conclusive of the whole case, had we not already intimated our intention to reject the more rigid rules of construction, and by an examination of every part of the deed, extract, if possible, the intention of the parties.

It is a rule of construction, that the covenants of a deed cannot be resorted to, to aid the defective description in the habendum or premises of the same, or to extend the premises. But taking this deed as a whole, it is apparent that the intention was to convey all of the real estate of the grantor, in the State of California. If, however, we resort to the covenants of the deed, for the purpose of explaining the premises, we are not at liberty to disregard those covenants, but must give to them the full intention of the parties. This intention, as it most undoubtedly appears from the recital of the covenants, was not to pass the title of the estate, until the payment of the $125,000 purchase money. The vendor constituted Brannan and others his attorneys, to sell and dispose of the same, reserving the legal title in himself, until the conditions of the instrument had been complied with.

Assuming, then, that the instrument is not a deed of bargain and sale, passing the title in presentí,, to the grantees, let us next inquire Vhether it can be supported as a covenant to stand seized to the use of the bargainees.

Before the passage of the Statute of Uses, (Henry the VIII,) conveyances of land by bargain and sale, and covenants to stand seized to uses, did not exist. In such cases, the title did not pass, but a use was raised in favor of the bargainee or covenantee; and the party was forced to rely upon his covenant, or resort to a Court of Chancery for relief. These covenants were afterwards executed by operation of the statute, which passed the title or legal estate to the bargainee or covenantee.

To sustain a covenant to stand seized to uses, considerations of blood or marriage were necessary. 10 Bacon Abr., Title, Uses & Trusts, 145; 2 Black., 338; 4 Kent, 495; Wiseman’s Case, 1 Coke, 447. In opposition to this doctrine, I have been able to find but one authority— that of Jackson v. Dansbaugh, 1 Johns. Cases, 92, in which the Court used the following language: “ The next point to be examined is, whether the pecuniary consideration, in the first deed, is sufficient to raise a use, by way of covenant, to stand seized. It has been a general opinion that no considerations, but those of blood and marriage, are sufficient for that purpose. This appears to me to be an error. It is true, that such is the case in England; but it has been so since the Statute of Enrollments only—before which time covenants, to stand seized, could be raised on pecuniary considerations. The intent of this statute being to restore the notoriety of conveyances, the Courts of justice, to forward the views of the Legislature, and to prevent evasions of the law, determined that where the consideration of a deed was pecuniary, which was of a private or secret nature, it should not take effect as a covenant to stand seized, which did not require enrolment, but as a bargain and sale, which did. Considerations of blood and of marriage, being of a public nature, and always having sufficient notoriety attached to them, did not fall within the same reason, and therefore were held competent to support a covenant to stand seized.”

It is to be observed that the opinion of the Court, in this case, is founded upon the supposed operation of the Statute of Enrollments. Before the passage of this act, or the Statute of Uses, a bargain and sale could only be supported by a pecuniary consideration, (Hilliard on Real Property,) while a covenant to stand seized to the use of another would be good, if founded on consideration of blood or marriage. The Statute of Enrollments did not affect the latter, but left them precisely as they stood before its passage.

“ To check the multiplication of secret conveyances, by means of bargain and sale, after the Statute of Uses,” says Mr. Hilliard, in his work on Real Property, “ another Act, 27 Henry 8, Ch. 19, was soon passed, requiring this conveyance to be made by .deed, indented and publicly enrolled, or recorded. This Act did not extend to deeds, which could operate otherwise than as a bargain and sale—such as a feoffment, release, or covenant to stand seized; although if enrolled, they might also operate in this way. Nor did it apply to estates fot years.” The intention of the statute being to give notoriety to conveyances, it was not deemed necessary to require the enrollment of covenants to stand seized to uses, as they were supported by considerations sufficiently public in their nature; and they stood, as they did before the Statute of Uses, except that, by the statute, the use became executed, and the title passed. Had it been understood that such uses could be raised by a pecuniary consideration, it appears to me that the same policy which required deeds of bargain and sale to be recorded, would have been extended to them also.

The case of Jackson v. Dansbaugh, is not supported by the later decisions of the same Court. See Jackson v. Sebring et al., 16 Johns., 515; Jackson v. Cadwell, 1 Cowen, 643; Jackson v. De Lancy, 4 Cowen, 431. See, also, French v. French, 3 N. H., 239; Underwood v. Campbell, 14 N. H., 393; Sanders on Uses and Trusts, 80; 4 Greenleaf’s Cruise, 107. Authorities without number might be multiplied on this point, but we deem it unnecessary. It will be borne in mind that a covenant, to stand seized to uses, only operated as a conveyance by virtue of the Statute of Uses, which has never been in force in California ; and, consequently, such ¿ mode of conveyance is unknown to the laws of this State. But, if we should be wrong upon this proposition—which we confess we bave approached with no small degree of reluctance, on account of the difficulties attending its investigation, involving a branch of law for the first time brought before this Court, and with no access to such authorities as would assist in our investigation, still, we are of opinion that it is unnecessary, for the purposes of this decision, to determine whether any other considerations than those of blood or marriage are sufficient to support a covenant to' stand seized to uses; as we are satisfied, from a full examination of the instrument, that it was designed as an executory agreement for the sale of the property therein described; or a conveyance on condition preeedent, dependent for its validity on the performance of an act in pais-, that the payment of the purchase money was a condition precedent to the vesting of the legal estate, is a proposition which follows so clearly, from the terms of the instrument, that we entertain no doubt of it whatever. A deed, on condition precedent,' is not a title, or proof of title; because the fee is dependent, not on the terms of the deed, but proof of the performance of those terms. It is the event which casts the title, not the deed. That this was the design of the parties, I think appears too clearly from the covenants of the deed to require any argument whatever; and the rational intention, as gathered therefrom, was, that the vendor only bound himself to convey, upon the payment of the purchase money. Now, although it has been stipulated, for the purpose of this case, that the purchase money was paid, still, it is not admitted that such payment was made before or after the sale to the present plaintiff, or that he, in fact, had any notice whatever of such payment. It becomes, therefore, necessary to inquire, what was the effect of the recordation of the instrument, and whether the plaintiff took the same, charged with notice of the equitable title of the vendees; as we are satisfied that an equitable defence may be set up, in an action of ejectment, to defeat the plaintiffs’ recovery—thus avoiding a circuity of action.

The recording Act of this State was designed to establish one system of notices, by which every one would be able to ascertain what incumbrances existed upon real estate, and by affording a convenient depository for liens and conveyances of lands, (to which all might have access,) substitute the constructive notice, thus established by operation of law, in place of all other kinds of notice. If such was not the intention of the Legislature, we have studied the Act to little purpose, and to them must be ascribed the folly of passing a law without any intention, the effect of which is to confuse titles and render them more uncertain, if possible, than they were before.

At common law, the registry of a deed is not even prima facie evidence of title, and imports no notice whatever, and the purchaser is put upon inquiry in every case. The inconvenience arising from the English rule upon this subject, has induced the passage of registry laws in every State in the Union, the intention being to do away with all notice, other than that given by statute, except, probably, actual notice in fact, attended with such circumstances as amount to fraud on the part of the purchaser.

If then, the instrument in question is to be considered a conveyance in presentí, it imports no notice, by reason of the insufficiency of the description of the premises conveyed; if an executory contract, its recordation is not authorized by the statute of this State, and, therefore, if recorded, imports no notice. Kerns v. Swope, 2 Watts, 78: Stansell v. Roberts et. al., 13 Ohio, 148; 12 Smedes & Marshall, 262; 6 B. Monroe, 671. Other authorities might be cited to this proposition, but we deem it unnecessary.

If it be contended that the possession of the defendants put the plaintiff upon inquiry, and that it was his duty to ascertain the character of the defendants' possession and title, we answer, that it was the intention of the statute to protect the purchaser of the legal title against latent equities, or. mere executory agreements, and to abolish the presumption of notice arising from possession.

For the foregoing reasons the judgment is reversed, and the cause is remanded.