171 P. 1061 | Cal. | 1918
The facts upon which this action is based are as follows: On January 22, 1913, plaintiff and defendants entered into a written agreement whereby the former gave the latter an option, to be exercised at any time prior to January 22, 1914, to purchase 160 acres of land for the sum of sixteen thousand dollars, payable "twelve thousand dollars cash on delivery of clear title," subject to mortgage of four thousand dollars; and also gave to defendants the right to the use and occupation of the land for the period covered by the option. In consideration therefor defendants on their part agreed to do certain improvement work upon the land and seed the same to alfalfa. Defendants entered thereon and continued in the use and occupation thereof until January 22, 1914, at which time the option by its terms having expired without defendants exercising the right given thereby to purchase the property, they surrendered possession of the same to plaintiff, who, in May following, brought this action to recover damages for defendant's breach of contract to do the work agreed to be done by them upon the property.
In their answer defendants alleged that at no time during the period covered by the option could plaintiff have given them a clear title to the land, for the reason that by virtue of an easement therefor granted by plaintiff, a public highway existed along one side of said tract of land which constituted an encumbrance upon the title. It was further alleged that upon discovery of the fact that such encumbrance existed defendants rescinded the contract. The issues joined were tried by a jury, which returned a verdict in favor of the plaintiff. Judgment followed, from which defendants appeal.
"The only question involved," says counsel for appellants, "is whether or not the admitted public road and the other easements . . . are encumbrances" which entitled defendants to rescind the contract. "If the facts did not warrant a rescission of the contract, then," says appellants' counsel, "the judgment is correct and should be affirmed." Section
Moreover, while there is some apparent conflict of authority upon the subject, the covenant in the contract to give a "clear title" must, upon the facts disclosed by this record, be deemed to have been understood and intended by the parties as a title free of encumbrance as defined by section
What is said applies with like force to the canal or water ditch, the purpose of which was to convey water for irrigation and use upon the land in question in common with other lands in the vicinity, and without which, as known by defendants, the land would be valueless.
The judgment is affirmed.
Melvin, J., and Wilbur, J., concurred.
Hearing in Bank denied.