93 Cal. 664 | Cal. | 1892
George D. Carleton, a married man, became the owner of the property referred to in the complaint on January 11, 1868, and on July 7, 1868, he filed a homestead thereon. On April 8, 1870, Carleton executed and delivered to A. E. Horton a deed of con
This action was commenced on April 30, 1888, to recover one half of the sums of money received by defendant,—$5,450. Although the evidence is undisputed that defendant received from Platt the sum of ten thousand dollars for the deed of February 7th, and four hundred dollars for the deed to McLaren of April 2d, the court found that the defendant had sold plaintiff’s interest in that portion of the land purchased by Platt for the sum of five thousand dollars, and his interest in that portion sold to McLaren for the sum of four hundred dollars. It is a singular fact, too, that although the court found defendant was “ at his own cost and expense to bring suits, .... and to pay all costs and expenses which might be incurred in or about the recovery, sale, or disposal of said lands,” and that all money obtained from the sale was to be equally divided between plaintiff and defendant, $562.50 was allowed the defendant as costs incurred by him in making the sale and conveyance. Plaintiff was given judgment for only $2,418.75 (that being one half of the balance remaining after deducting $562.50 from $5,400), and interest at seven per cent from August 2,1887.
Defendant moved for a new trial, and the motion was denied. From this order and the judgment he has appealed.
The court made no finding as to the interest purchased by Wilde and Frink, but the evidence shows that the plaintiff had parted with his interest in the land sold to them before he made the deed to defendant.
It is claimed by appellant that plaintiff acquired no interest in the land through the quitclaim deed received from Carleton and wife, and if he did, such interest was conveyed by him to the Clark trustees by the deed of March 1, 1886, and therefore the defendant took nothing by the plaintiff’s deed of March 18, 1886.
Section 12'43 of the Civil Code, upon which appellant relies, provides that a homestead can be abandoned only by a declaration of abandonment, or a grant thereof, executed and acknowledged by the husband and wife, but the word “grant ” is here used in its generic, not its technical, sense, and as so used, is a term applicable to all transfers of real estate. Section 1053 of the Civil Code says that “ a transfer in writing is called a grant, or conveyance, or bill of sale.” Washburn says that “though the word ‘ grant ’ was orignally made use of in treating of conveyances of interests in lands, to denote a transfer by deed of that which could not be passed by livery, and of course was applied only to incorporeal hereditaments, it has now become a generic term, applicable to the transfers of all classes of real property, and will be used in that broad sense in speaking of the formal transfer of titles to lands.....Wood, in his treatise on Conveyancing, says: ‘The word “grant,” taken largely, is where anything is granted or passed from one to another; and in this sense it comprehends feoffments, bargains and sales, gifts, leases in writing or by deed, and sometimes by word without writing.’ ” (3 Washburn on Deal Property, _5th ed., 193, 375.) A statute of New Jersey provided that it should be lawful for any married female to receive, “ by gift, grant, devise, or bequest, and hold to her sole and separate use as if she were a single female, real and personal property ”; and the court held that the legislature did not intend to use the terms “gift” and “grant” in their technical sense, but to embrace within the meaning of the terms used all the modes of acquiring property, except, perhaps, by descent. The court said: “ The Vermont statute provides that any rights in real estate which a feme covert may acquire by gift, grant, devise, or inheritance, during coverture, shall not be liable for the debts of the lius
It is admitted that Carleton was the owner of the property at the time the declaration of homestead was filed; and as a quitclaim deed in this state passes all the
The other point made by appellant is equally untenable. There is no doubt that where the language in the habendum, is irreconcilable with that used in the premises, the premises will prevail; but, like the words in a contract, all the words employed in the deed should be given some effect, if possible, and if consistent with the evident purpose and operation of the deed. (Havens v. Dale, 18 Cal. 366.)
There can be no possible question as to what the parties to the deed of March 1st intended. The word “ grant,” as used in deeds, has a well-known signification; but the parties may limit or qualify its meaning, and if they choose to do so, the court should not hesitate to carry out their expressed intention. (Morrison v. Wilson, 30 Cal. 344; Castro v. Tennent, 44 Cal. 253.) The language used in the deed is so plain and unambiguous that the intention of the parties appears upon the face of the instrument; but if the circumstances surrounding the transaction can be considered, their intention becomes still more obvious. The Clark trustees were dissatisfied, and had commenced, or threatened to commence, an action to set aside their conveyance to the plaintiff. The grounds of their dissatisfaction do not appear; but plaintiff testified: “They didn’t think we paid enough. We deeded it back to them, and they gave us our money back. We rescinded the contract.” They doubtless believed that the plaintiff and Pauley had no title to the property at the time he attempted to convey to them. Plaintiff had paid them $7,087. This sum they repaid to him, and agreed that they (plaintiff and Pauley) should reconvey- to them only such interest in the property as they had acquired through the deed of June 22, 1885. All of the parties to. the deed evi
If our views of the case thus far expressed are correct, the remaining topics discussed in the briefs require no extended consideration.
The court did not err in refusing to consider the testimony of Platt and others to the effect that they purchased relying upon the title which defendant had acquired through his grant from • Carleton and wife. Defendant entered into the contract with plaintiff, and took as a thing of value what title the latter held, with full knowledge of all the facts. Upon the strength of his agreement to protect the title of the plaintiff, and to perfect it if necessary, the plaintiff conveyed to him all his right, title, and interest in the property, and went to Europe, trusting in the defendant to carry" out his agreement in good faith. It was the duty of the defendant to protect the title which he had acquired, and make the most out of it. As a matter of fact, he paid Carleton and his wife only fifty dollars for their deed. That deed conveyed to him no interest whatever; but if it had, the defendant would have been bound to account to the plaintiff for it. (Hardenbergh v. Bacon, 33 Cal. 377.) It is immaterial what the purchasers thought they were buying. The material question is, What did the defendant convey? The only title he acquired from any
It is claimed by appellant that there is no evidence to support the second and third findings of the court, — nothing to show, at least, that he agreed with plaintiff to pay all costs and expenses which might be incurred in or about the recovery, sale, or disposal of the lands; and that the court erred, therefore, in not deducting from the amount received by defendant the sum of one thousand dollars paid to an attorney for advice and assistance. The advice and assistance referred to consisted in an attempt to show that the plaintiff had no interest whatsoever in the land. We do not know upon what theory the court below deducted the sum of $562.50, and refused to allow the defendant anything on account of the attorney fee, unless it was that plaintiff ought not to be charged for advice which was adverse to his title. We think the finding as to costs is supported by evidence. The plaintiff testified as follows: “He agreed to give me one half. .... I told him I would give him one half what he got. He was to get half, and I was to get half. .... He first told me in San Francisco, — he said, you have made ten thousand dollars out of that transaction.” This last statement the defendant did not deny. The defendant testified as follows: “I agreed to give him one half of whatever I recovered under that deed.....Q,. He agreed to ive it to you, and you were to divide the receipts, was n’t it? A. I think it was.” The fact that plaintiff was willing to allow the defendant fifty per cent of the amount recovered should be considered, also, in determining the question as to whether the defendant agreed to pay the costs and expenses. It is true, the defendant testified that the plaintiff agreed to pay one half of the expenses, but the evidence was conflicting; the court found in favor of the plaintiff, and that finding cannot be disturbed here. But whether the finding is supported by the evidence or not, the failure of the court
We think the court below properly computed interest on the amount found due from August 2,1887. Plaintiff' testified that on August 2, 1887, he went to the defendant’s office, and inquired about the twenty thousand dollars; that the defendant said: “ Ain’t ten thousand dollars enough? I will pay you the money next week.” But w'hether interest was allowable or not, for the reasons stated in the last paragraph the defendant was not prejudiced by the amount of interest included in the judgment.
It is claimed by appellant that the present action for money had and received will not lie, an accounting being necessary between the parties. The complaint, however, sets forth all the facts upon which the plaintiff relies, and it is apparent from the evidence that no accounting was necessary. If an accounting had been necessary, the court below, doubtless, would have ordered it taken.
There is no merit in the appellant’s claim that the transaction was between Faivre and the firm of which the defendant was a member. The other members of the firm testified that they had no interest whatever in
Judgment and order affirmed.
Sharpstein, J., Harrison, J., McFarland, J., De Haven, J., and Garoutte, J., concurred.