60 P. 1032 | Cal. | 1900
Action of ejectment. Judgment went for plaintiff, and defendant appeals from the judgment upon the judgment-roll, which includes a bill of exceptions.
The case was here once before (Haile v. Smith,
After the return of the remittitur plaintiff filed an answer to the cross-complaint, and the court tried the issues raised by the pleadings. The court found that the plaintiff tendered to defendant a deed of grant, bargain, and sale of the land properly executed, and that defendant refused to accept it, and notified plaintiff that he would not accept such a deed because the title of the plaintiff was not good or satisfactory; and "that at no time has said defendant paid, but that he has failed and refused to pay, the balance of the purchase money and the interest due upon said agreement or any part thereof, or to accept plaintiff's said deed of grant, bargain, and sale." These findings are, beyond doubt, fully sustained by the evidence, except, perhaps, as to some interest. The court further found that at the time of the contract plaintiff was "the owner and seised in fee and possessed and entitled to the possession" of the land here involved; but it further found "that plaintiff's title to said premises consisted of and depended upon the undisputed, continuous, absolute and adverse possession of the said premises from the year 1861 until the twenty-fourth day of September, 1891, and that plaintiff has paid the taxes thereon continuously during all of said times." These findings as to the possession of plaintiff and his title by prescription are amply justified by the evidence. The court further found that ever since the tenth day of September, 1853, the "record title" to the premises "has been and is outstanding in the name of Victor Howell," and also found, as a conclusion of law, that the title of plaintiff to the land since January 21, 1891, has not been a "merchantable title." It also found that defendant has made valuable improvements on the land.
The foregoing is a sufficient statement for an understanding of the main contention of appellant — which is that the evidence and findings show that the respondent has not a good and complete title to the land, and, therefore, cannot maintain this action. His position really is that, under his view of the facts, he may indefinitely keep possession of the *419
land while refusing to make payment of the purchase money. But this he cannot do. He received possession of the land from respondent under the contract, and can retain possession only by fulfilling his covenants which he therein made. He cannot keep both the land and the purchase money. It is not necessary, therefore, for the purposes of this case, to determine definitely whether or not respondent has a good and sufficient title. If appellant desired to retain the possession which he acquired under the contract he should have complied with his part of it; if he concluded not to comply because the title was not satisfactory to him, he was bound to restore possession to respondent. Whatever cause of action he may have for the purchase money which he paid and for the value of his improvements is another matter; it constitutes no defense to the present action. In Worley v. Nethercott,
2. A rather novel point is raised as to the verification of the answer to the cross-complaint; the latter having been verified, the appellant moved to strike out the answer to it, and objected to any evidence in support of it, on the ground that it was not verified. The fact was that the answer was verified *420
before a district attorney, and the point is that there is no authority for making a verification before that officer. It is probable that few good lawyers would risk such a verification; and it is not likely that it would occur to them that an affidavit in a civil cause could be taken before a district attorney. Upon examination of the codes, however, it is not clear that such a verification is unauthorized. The provisions of the codes about taking and verifying affidavits are numerous and somewhat loose. The only case to which we have been referred which at all touches the point is Winder v. Hendricks,
The judgment appealed from is affirmed.
Temple, J., and Henshaw, J., concurred.
Hearing in Bank denied. *422