Central Pacific Railroad v. Beal

47 Cal. 151 | Cal. | 1873

By the Court, Niles, J.:

The plaintiff has the title to the demanded premises if it passed to Foote by Mesick’s deed of September 11th, 1863. There is no question that the title was in Mesick at that date, but it is a question whether the land was included in the description of the deed. The descriptive words are: “All of the town lots situate in the city of Sacramento remaining unsold, which are described in and conveyed by a certain deed of conveyance bearing date the 9th day of July, 1855, made and executed by John A. Sutter, Jr., to the party of the first part”—The deed referred to describes about two thousand lots, but the lot in controversy was not among them. It contained, however, a further call for “any and all lots, pieces or parcels of land within the corporate limits of the said city of Sacramento.”

The lot in controversy is within the corporate limits of the city, and is, therefore, within the area mentioned in the deed. It was not conveyed by that deed in the strict technical sense of that word, because Sutter, Jr., had no title to the premises at the time. But wherever it is apparent that a grantor has used a technical word to express an idea different from its technical signification, a court will construe it accordingly; and it seems to us clear that by the use of the words “ described in and conveyed by ” Mesick intended to convey to Foote the lands which he then owned, and which the former deed described and purported to convey.

The appellant claims that the demanded premises were excluded from the operation of the deed to Foote by force of the words “remaining unsold.” The argument is based upon the finding that in February, 1857, Mesick made a deed by which, after disclaiming any title or interest to the lot in controversy, he quitclaimed to McKee, the grantor of defendant. Mesick had then, in fact, no* title, but acquired it in May, 1859, by purchase from the true owner. It would be a strained construction to hold that the conveyance to McKee, made at a time when Mesick" had no title and claimed none, and which of course could have no possible effect upon his own after acquired title, was the sale which he had in view as the basis of his reservation in the conveyance to Foote.

As we construe the deed, the intention was to convey to Foote all lots included in the general description, to which Mesick then held the legal title, and that the title to the lot in controversy passed accordingly.

Judgment affirmed.