58 Cal. 281 | Cal. | 1881
This action was "brought to compel the specific performance of a contract by which the respondent, upon a sufficient consideration, agreed to convey by deed to the appellant a perfect title to a certain tract of land described in the complaint. The respondent could not, by reason of the existence of a valid mortgage upon the premises, convey a perfect title without first satisfying said mortgage and procuring its discharge. This he refused to do. We think that appellant is entitled to the relief prayed in his complaint, viz.: “ That the defendant cause the said tracts or lots of land to be released from said mortgage, or in default thereof, that he secure the plaintiff from the payment of the same, and execute to the plaintiff a sufficient conveyance of the said land with a perfect title thereto,” but without damages—the jury having found against him upon that question. .
Judgment reversed, with directions that a judgment be entered in favor of the plaintiff and against the defendant in accordance with the foregoing opinion.
The following is the opinion rendered in Hoeckel v. Reese, No. 7,403:
This is the counterpart of Reese v. Hoeckel, No. 7,210.
We do not think that the deed tendered by the appellant to respondent would convey a perfect title to the premises, so long as there was a mortgage on them of prior date, unsatisfied and undischarged. The obligation of the respondent to pay depended upon a conveyance to him of a perfect title to the land, by appellant’s assignor. No such conveyance having been tendered, it necessarily follows that no action for the consideration can be maintained.
Judgment and order affirmed.