16 Cal. 189 | Cal. | 1860
Cope, J. concurring.
The third section of the act “to provide for the Construction of Canals, and for Draining and Reclaiming certain Swamp and Overflowed Lands in Tulare Valley,” passed on the 11th of April, 1857, is a grant upon condition precedent, and not, as counsel of the respondent contend, upon condition subsequent. This is evident from the clause following the condition, and restricting the right of the grantees to take the odd sections until “ after the reclamation of the lands’,” and the accompanying proviso, that none of those sections shall be subject to private entry. The proviso was altogether unnecessary, if by the act it was intended to vest an estate immediately. The consideration is the reclamation of
The agreement between the plaintiff and defendant, for the sale and ultimate conveyance of five of the sections, was made upon a full knowledge of the rights of the grantees of the State. There is no pretense of misrepresentation in the case. The act of the Legislature is referred to in the agreement; the construction of the canals had been commenced at the time; and the vendor covenants that he and his associates will execute a good and sufficient deed to the defendant, upon the payment of the several notes given as the consideration, and will complete the canals within the five years allowed; and that by means thereof, and the operation of the statute, they will have a good and valid title to the premises. The agreement anticipates a possible failure of title, and expressly provides that, in case it shall at any time be determined that the lands designated in the act do not belong to the State, or it shall at any time become apparent that the vendor and his associates cannot make a good title, in consequence of forced sales, or from any other cause, the notes remaining unpaid shall be surrendered, and the money paid shall be refunded. To this agreement the defendant must look to obtain a return of his money, in case the title fails. He cannot resist the first payment merely because the Legislature has attempted to destroy, by an unconstitutional act, the contract of the State with the vendor and his associates.
Judgment affirmed.