14 Cal. 440 | Cal. | 1859
delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.
The plaintiff, Respondent here, filed his bill to assert a trust in respect to a certain piece of land in San Francisco. It is not very easy to make an intelligible statement of the facts without a map to indicate the precise subject of dispute. The defendant filed a demurrer to the bill, which was overruled, and the defendant declining to answer further, a final decree was rendered for the plaintiff.
The bill sets forth that, on the 6th of September, 1852, one Thomas O. Larkin, then owner of a large tract, leased part of it— a piece marked “A” on the map—to one Williams for five years, with a clause allowing Williams to purchase at the end of the term. On the 1st January, 1853, Larkin leased to Williams, also for five years, the adjoining land, with a like covenant. On the 31st January, 1853, Williams conveys to Yan Yoorhies two-fifths of apart of the land contained in such lease; and, on the-same day, conveyed to one Baum one-fifth of the same piece.. On the 21st December, 1853, Williams, Yan Yoorhies, and Baum,,
The Respondent claims, that under this state of facts, Page, when he bought the reversion from Williams of this piece of ground, bought it subject to the pre-emption right in Larkin’s deed to Williams. We have already seen what that right was. It is not necessary to consider whether this pre-emption right is a personal privilege to the lessee, or whether it runs with the lease and may be assigned with it, for the view we have taken is decisive of the question, independently of this consideration.
It is enough, however, that the privilege, existing by the agreement, must be conformable to it; and that the agreement is, as we have stated, for all at the option of the lessee, and upon the agreed terms. The conveyances by Williams to Van Yoorhees of two-fifths, and to Baum of one-fifth, of this leased property, probably put it out of his power to avail himself of this privilege; and when, afterward, Williams, Yan Yoorhies, and Baum, conveyed to the plaintiff a part only of this leasehold interest, such assignment did not convey to the plaintiff the right to buy that part; for, as we have seen, the right was not divisible in this way. Otherwise, this provision might give rise to a very great number of purchases, and the price of each piece might be very difficult, if not impossible, of apportionment. When Larkin conveyed the reversion to Williams, in October, 1854, of a part of the land covered by the two leases, Williams did not purchase such part as trustee, nor was Larkin bound to convey to him, under the circumstances, any such part. He chose, however, to do so. By the various conveyances and contracts, this pre-emption right had ceased to exist; at least, it could not be enforced, because no one had any right to enforce the contract— if it were such—except according to its terms and true intent and meaning. What would have been the effect if these various interests had come' to the same hands, or been attempted to be enforced by all of these assignees together, and all agreeing to enforce this contract, it is unnecessary to determine, for no such fact, or state of facts, exists. As the transaction stood, the parties had effectually cut themselves off from this benefit; or, to speak more properly, no one of them had ever entitled himself to this privilege, because no one had become the assignee of the
Nor is there anything in the other circumstances which establishes this trust. The mere recital in the deed of Larkin, that he made it in pursuance of the lease, is not enough to raise a trust; for it matters not how Williams bought it if these other parties had no rights under the lease. Nor does the fact that-Page was tenant under Hitchcock prevent him from buying in the reversion.
The case of Laffan v. Naglee is much relied on. The facts are wholly different from those here.
Judgment reversed, and cause remanded.