124 P. 736 | Cal. Ct. App. | 1912
The allegations of the complaint, in substance, are these: Plaintiff bought of defendant an undivided half interest in a tract of land at Wilmington, paying therefor the sum of $675, defendant executing to plaintiff a bargain and sale deed. At the time of the sale and conveyance the defendant represented to plaintiff that she had a good and perfect title to the land and authority to sell and convey the same. Plaintiff relied upon these representations and believed them to be true, and upon the faith thereof paid the purchase price and accepted the conveyance. As a matter of fact, defendant had no title to said premises and owned no interest therein; that she believed at the time, as did plaintiff, that a certain conveyance theretofore made under which *8
she claimed title was valid, but in truth the same was a forgery, and defendant by reason thereof derived no title on account of such conveyance; that plaintiff did not discover this fact until in the year 1908, when such deed so made to defendant was by a court of competent jurisdiction declared to be invalid and a forgery. The action was brought to recover the amount of the purchase price so paid, with interest. A general demurrer was interposed to the complaint, which was by the court below sustained, and the complaint not being amended, judgment was rendered in favor of defendant for costs. From this judgment plaintiff appeals. It clearly appears from the averments of the complaint that the money paid in consideration of the execution of the deed and the whole transaction was occasioned by a mutual mistake of fact and such a one as is contemplated by subdivision 2 of section
Judgment reversed and cause remanded.
James, J., and Shaw, J., concurred. *9