41 Cal. 462 | Cal. | 1871
The action is ejectment, and at the trial the plaintiff relied upon a paper title, which was put in evidence. Judgment was rendered for the plaintiff, and the defendant moved for a new trial, partly on the ground of newly discovered evidence, to the effect that prior to the commencement of the action the plaintiff had sold, and by a deed in due form, properly acknowledged, certified, and delivered, had conveyed the premises in controversy to another person, and at the time of the conveyance had received a portion of the purchase money, and had taken the promissory note of the purchaser for the remainder; that the purchaser retained the deed for about one month, when it was verbally agreed to cancel the contract of sale; and thereupon the plaintiff surrendered the promissory note, and the purchaser returned the deed to the plaintiff to be canceled; but no reconveyance was made by the purchaser. These facts are fully and satisfactorily established by affidavit, read in support of the motion, and clearly show that the legal title to the premises was not in the plaintiff at the commencement of the action.
Judgment reversed and cause remanded for a new trial.