55 Cal. 38 | Cal. | 1880
This action, as the case is presented, cannot be maintained. The record shows that on March 1st, 1876, the defendants were in the possession of the land described in the complaint, by virtue of a contract for its purchase from one Robinson, who held the title to it. Upon the land there were then existing certain improvements, consisting of a house and an artesian well. On
In view of the facts appearing in the record, we attach no importance to the finding that the plaintiff never offered to pay the note to Steele, nor to the findings in regard to the signing by the defendants of a deed “ sufficient in form ” to convey the title. The manifest effect of the contract, and the manifest intent of all the parties to it, was that in consideration of the plaintiff’s money the defendants were to convey to him the title to
The defendants failed to comply with the contract with Robinson, and the latter, prior to the commencement of the present action, commenced suit in the Nineteenth District Court against the present plaintiff and defendants, among others, for the purpose of annulling the contract held by defendants at the time of the making of the contract mentioned in the complaint, and for the purpose of recovering possession of the property. In the action thus commenced by Robinson, these defendants filed a disclaimer of any interest or estate in the premises. They failed to comply with their part of the contract here in question, for they did not and could not convey to the plaintiff the title to the property; and the plaintiff having complied in part, and offered to complete the performance of the contract on his part, it is clear, that had he surrendered or offered to surrender to defendants the possession of the property, he could have maintained an action against them. Instead of doing this, he retained the possession of all the property, and commenced this action to recover of the defendants “ the sum of $26,012, the amount already paid by plaintiff on the purchase-money for said lands, and for the sum of $1,000 damages suffered by plaintiff, and for the further sum of $2,500 damages to cover loss of improvements and the promissory note made payable to White.”
It would be clearly wrong to permit the plaintiff to hold the possession of the property which he received from the defendants, and which may ripen into a perfect title, and at the same time to recover back from the latter the purchase price; and it is well settled that it cannot be done. (Morrison v. Lods, 39 Cal. 381; Jackson v. Norton, 6 id. 187; Purdy v. Bullard, 41 id. 444; Truebody v. Jacobson, 2 id. 287; Fletcher v. Mower, No. 6,258, not reported.)
Section 3306 of the Civil Code, relied on by counsel for the appellant, only declares the measure of damages caused by the breach of an agreement to convey an interest in real property. “ The detriment,” says the statute, “ is deemed to be the price paid, the expenses properly incurred in examining the title and
But, before an action can be maintained to recover this detriment, the plaintiff must have been evicted, or have voluntarily surrendered, or offered to surrender possession. He cannot, as already observed, hold on to the property, and at the same time recover back what he paid.
The judgment and order are affirmed.
Morrison, C. J., and McKinstrt, J., concurred.