17 Cal. 586 | Cal. | 1861
Baldwin, J. and Cope, J. concurring.
This is an action to compel the defendants to execute a deed of certain premises held by them. The complaint alleges that the premises were purchased by the plaintiff of one Craw, and by agreement with the defendants were conveyed directly to them as security for a debt, they to make a deed, to the plaintiff upon its payment, and that the debt was subsequently paid and the deed demanded; but it does not allege that the defendants, upon the demand, refused, or at any other time since have refused, to execute the deed. The omission in this particular was a fatal defect, and one that could be taken advantage of under the ground that the complaint does not state facts sufficient to constitute a cause of action.
This is enough for the affirmance of the judgment; but it would appear from the briefs of counsel, that the ruling of the District Court was placed upon the ground that the cause of action was barred by the Statute of Limitations, and thus the attention of counsel was not directed to the defect in question—otherwise he would have amended his complaint. The omission in the amended complaint was evidently an oversight, for the refusal is alleged in the original complaint. The statute was not a bar to the cause of action, so far at least as one of the defendants is concerned. The case comes within the nineteenth section of the statute, and does not fall, as counsel for the respondents appears to think, under the provision in relation to the commencement of actions based upon a contract, obligation or liability not founded upon an instrument of writing. Under the circumstances, the judgment will be affirmed, without prejudice, however, to a new action by the plaintiff upon the payment of the costs of the present action; and it is so ordered.
