50 Cal. 485 | Cal. | 1875
Lead Opinion
It is satisfactorily shown that, in the year 1854, Olvera, by deed of bargain and sale, conveyed to E. O. Crosby the undivided third of the Rancho Cuyamaca; that the only consideration therefor was the agreement of Crosby to prosecute to a final determination before the Board of Land Commissioners and the courts of the United States, the claim of Olvera to the said rancho, and that Crosby failed to perform his agreement. The title to the undivided third of the rancho vested absolutely in Crosby, and his agreement did not constitute a condition, upon a breach of which
On the 28th of April, 1869, Olvera executed to the plaintiff a conveyance, by which the former purported to convey to the latter “the interest in said lands or rancho heretofore conveyed as aforesaid to said Elisha O. Crosby, and which is described as follows, to wit: All the undivided one-third part of that tract of land and rancho, in the county of San Diego, called Cuyamaca.” The deed recites that Crosby had agreed with Olvera to prosecute his claim to the rancho and procure a patent, in consideration of which Olvera agreed to convey to Crosby one undivided third of the rancho which should be confirmed and patented, which agreement was evidenced by a deed executed by Olvera and a “defeasance” executed by Crosby. But no defeasance was, in fact, executed by Crosby, nor did Olvera agree to convey the undivided third of tho land to Crosby—the recital being a misdescription of the deed and agreement between Olvera and Crosby, first above mentioned. It is alleged in the complaint, and found by the court, that Olvera, from November, 1859, to April 28, 1869, held the possession of the whole of the rancho, adversely to all the world, and that since that day Olvera and the plaintiff have held such adverse possession, and the evidence is sufficient to sustain that finding. The effect of such adverse possession was to extinguish the title which Olvera had conveyed to Crosby, in whosesoever hands it might be, at the time the Statute of Limitations had completely run. We are not to be understood, however, as holding that such adverse possession would have any effect as against a patent to the rancho subsequently issued, if Crosby and his grantees are entitled to the benefits of the patent. It did not retransfer the title of Crosby to Olvera, but, as we have often held, it extinguished it, and thus the entire title to the rancho was left in Olvera. That was the condition of the title, as shown by the finding, at the date of the deed of Olvera to the
It is proper to add, that the first portion of the description of the interest conveyed by Olvera to the plaintiff is inoperative for another reason, which is, that the interest which was conveyed to Crosby having been conveyed absolutely, and without any condition or defeasance, was not in Olvera when he executed his deed to the plaintiff, and, therefore, he could not convey that interest. The finding, therefore, to the effect that Olvera conveyed to the plaintiff the identical third which he had theretofore conveyed to Crosby, cannot be sustained.
If the finding be construed as stating that Olvera, in accordance with our construction of the deed, conveyed to plaintiff one undivided third of the rancho generally, without limiting it to any particular third, the question arises whether the plaintiff can maintain the action. It is alleged in the complaint that the only claim which the defendants set up to the premises is derived under the deed of Olvera
Judgment and order reversed, and cause remanded for a new trial.
Remittitur forthwith.
Dissenting Opinion
I am unable to agree with a majority of the Court in its interpretation of the deed from Olvera to Hartman. Though the phraseology employed in the description of the interest
Mr. Chief Justice Wallace, being disqualified, took no part in the decision.