Ryan v. Tomlinson

39 Cal. 639 | Cal. | 1870

Crockett, J.,

delivered the opinion of the Court:

On the former appeal in this case (31 Cal. 11) the only points decided were : First—That the judgment of the County Court, ordering the Trustees of the town to convey the lot in controversy to Duff, Avas void, for the reason that,' before the rendering of the judgment, the plaintiffs in the action, by an order entered of record, had abandoned their claim to the lot and withdraAvn from the contest. We held that this put an end to the action, and that, therefore, the cause Avas not pending Avhen the Court rendered the judgment. Second— That the stipulation signed by the respective counsel of Duff and Brewer was inoperative to give vitality to the judgment, Avhich was void for the reason above stated. Third—That said stipulation was insufficient-to authorize and validate the conveyance from the Trustees to Duff. But, on that appeal, there was nothing before us, except the action of the Trustees • awarding the lot to Brewer, the proceedings .in the County Court, including the stipulation of the counsel, and the. conveyance to Duff made by the Trustees in accordance with, the judgment. But, on the second trial, from the judg.ment in which this appeal is taken, it was proved that the stipulation of the counsel, in virtue of which the judgment of the County Court was rendered, was the result of a com- . promise agreed upon between Duff and Brewer, to the effect that in consideration of a conveyance to be made .by Duff to - Brewer, of another lot, Brewer waived his claim to the lot in controversy, and consented that it be conveyed by the Trustees to Duff; and the stipulations of the counsel, and the judgment rendered in pursuance thereof, were intended by the parties to effectuate this agreement on the part of Brewer. , It Avas further proved that Duff had fully performed the agree- . ment on his part, by conveying to Brewer the lot Avhich he had agreed to convey. This proof was excluded by the Court, on the motion of the defendant, and this ruling is ' assigned by the plaintiff as the chief ■ error relied upon on this appeal. We think the evidence Avas clearly admissible. In effect, it established an executed parol agreement between Duff and Brewer, whereby they agreed to an exchange of lots. Duff has performed his part of it, by conveying to Brewer the lot agreed upon, and Brewer has also performed, on his - part, by causing the Trustees to convey to Duff the lot in - contest, and has ratified the transaction by deeds made since the commencement of this action. Duff and-Brewer are both content with the result, and neither complains of any wrong in the premises. -We do not comprehend on what theory ■ the defendant, who, so far as . the record shows, is a mere . intruder, without title or color of title, can be heard to . say that -the agreement between Duff and BreAver, for an exchange of lots-, is void, under the Statute of Frauds. So long as the parties to the transaction are content with it, it is not for an intruder on the property, having no privity with Brewer, to invoke for the protection of the latter the aid of the statute. But the parol agreement having been fully executed, the Statute of Frauds would afford no relief, even though Brewer himself was seeking its aid. Nor is it material that the conveyance from the Trustees to Duff recites that it was made in obedience to the judgment of the County Court, which judgment this Court has decided to be void. It now appears that it was made with the full consent of Brewer, to whom the lot was awarded by the Trustees, and in the performance of his contract with Duff; and though the method adopted of procuring the conveyance to Duff, through the medium of a judgment of the County Court ordering the conveyance to be made, may not have been an effectual method, if the Trustees had resisted it, nevertheless, not having resisted, but on the contrary, having made the conveyance to Duff, as Brewer intended and agreed they should, it is a valid and operative conveyance, of which Brewer is not only not complaining, but to which he assented before it was made, and which he has since expressly ratified in writing. Neither Brewer nor the Trustees are seeking to impeach the conveyance to Duff, which is not only not void on its face, but on the facts disclosed in this record, is a valid and operative deed, notwithstanding the judgment, which it recites, was a nullity, and may be rejected as surplusage. If all the recitals touching the action of the County Court in the premises be rejected as surplusage, there will remain operative words of conveyance sufficient to transfer the title; and it now appearing that Brewer assented to it before it was made, we can imagine no theory on which it should be held to be void at the instance of a stranger to the transaction, not in privity with any of the parties to it.

Nor was the plaintiff precluded by the decision of this Court on the former appeal from proving the facts which were excluded by the District Court. Those facts were not before us on that appeal, and consequently there was no adjudication as to their legal effect. We simply held the judgment of the County Court to be void, and that the stipulation of the counsel was not a sufficient authority to the Trustees to make the deed to Duff. The questions raised on the present appeal were not before us on the former one, and it does not admit of debate that, on the reversal of a judgment and a second trial, the parties may introduce new proofs in support of the complaint or defense, as the case may be. There is no force. in the suggestion that the decision of this Court on the former appeal ended the case, so that it could not be re-tried. The order was, ‘ ‘judgment reversed and cause remanded.” Unless it was apparent from the opinion of the Court that the adjudication was intended to be a final disposition of the cause, the effect of the reversal was only to set aside the judgment, that a new trial might be held. This point has been several times decided in this Court. (Argenti v. San Francisco, 30 Cal. 462; Stearns v. Aguirre, 7 Cal. 443; Phelan v. San Francisco, 9 Cal. 16.)

These are the only questions on the appeal which we deem it necessary to notice.

Judgment reversed and cause remanded for a new trial.