Barfield v. Price, 40 Cal. 535

Barfield v. Price

40 Cal. 535 | Cal. | 1871

Templé, J.,

delivered tbe opinion of the Court, Rhodes, C. J., Crockett, J., and Wallace, J., concurring :

Tbe demurrer to tbe complaint was properly sustained, on tbe ground that it does not state facts sufficient to con stitute a cause of action.

In tbe first place, it does not sufficiently show that a mistake was committed by tbe plaintiff. It avers that she sold a tract of land, which is described by metes and bounds, and tbe quantity given; and we must presume, from tbe reading of tbe complaint, that it was conveyed by tbe same description. There was, then, no mistake committed in tbe description of tbe tract which she agreed to sell and in*542tended to convey. Sbe tben avers that she, by mistake, conveyed, also, another tract of land, which of itself contained. more than twice as much land as she intended to sell* There is nothing in the complaint to explain why she described the second tract in the deed, when she had already correctly described the tract she did intend to convey. The complaint recites the history of an attempted survey, made some weeks before the sale. There do not appear to have been any negotiations in regard to the sale prior to the time the deed was executed; and the survey seems to have had no connection with the sale or conveyance. Interpreting the complaint most strongly against the pleader, it shows that she had the correct description before her at the time she executed the deed ; and the mistake consisted in describing two tracts instead of one.

In the next place the complaint is deficient in not showing that the defendants did not understand the agreement to sell in accordance with the deed. ^There may have been no mistake on their part, except in failing to understand that the plaintiff supposed she was selling. If plaintiff supposed she was selling a different tract of land, but the defendants thought they were purchasing the tract actually conveyed, there was a mutual mistake as to the subject matter of the contract. In that case the minds of the parties never met, and there was really no contract of sale at •all. The deed was made under a mutual mistake of both parties, each believing there was an agreement when there was none. Under such circumstances the Courts might order a recision of the sale altogether, but could not compel the defendants to retain and pay for a tract of land they have never contracted for. The plaintiff should, if such were the facts, have tendered the whole amount of the purchase money, and asked for an entire recision of the eon-tract. /

And again, although the plaintiff may have been entitled to rescind the contract, or to have it reformed, she must seek her remedy with reasonable diligence. She cannot wait for an indefinite period, and without giving an excuse *543for ber delay obtain tbe relief sbe might have been entitled to upon a more prompt assertion of ber right. In this case tbe action was brought more than three years after the conveyance was made, and in the meantime the defendants had paid installments of the purchase money,7' amounting to about double what was due for the tract she says she intended to conveyi- and no excuse is given for the delay.

The plaintiff is described as executrix. As it is not alleged that the property in question belonged to the estate of a deceased person, this is probably a mistake; but if she intended to sue as. executrix, the complaint has no allegations whatever showing that she is entitled to sue in that capacity.

.One of the parties to whom the deed was executed which it is sought to reform, is averred to be dead, and the defendant, Price, is described as administrator, but there are no allegations showing that an administrator has been appointed, or even that any one is acting as such. Judgment obtained in this action would not be binding upon the estate of Pascal Price, for neither his administrators or heirs are parties.

Judgment and order affirmed.