29 Cal. 299 | Cal. | 1865
Under the construction which we put upon that portion of the agreement which specifies the conditions upon which the money was to become due and payable, it becomes unnecessary to determine whether the agreement was intended to operate as a mortgage or not; for, if as we hold, the money became due on the 3d of March, 1858, the date of the patent, and not on the 9th day of February, 1863, (the date at which possession of the land included in the patent, except lot No. 327, was recovered,) as claimed by counsel for the plaintiffs, the cause of action was barred by the Statute of Limitations before the suit was commenced. Hence our interpretation of the contract will be mainly confined to that portion which relates to the covenant on the part of the vendee (Baker) in regard to the payment of the forty-five thousand dollars therein specified, which is in the following language: “And the said party of the second part, for himself, his heirs and assigns, covenants and agrees to pay to the said parties of the first part, or their assigns, the said sum of forty-five thousand dollars, tohen they shall have legally recovered possession thereto, subject to the provisions aforesaid, as to payments, provided said grant of land is so decided as to include the above described fifty vara lot number three, hundred and forty-seven (347) as described in said deed of conveyance.” The words which we are called upon to interpret are in italics.
Theparagraph immediately preceding the foregoing describes the subject matter of the contract, which is fifty vara lot No.
So much being established, it only remains to determine what is meant and intended by the parties when they speak, of “the recovery of the possession of lot No. 327.” In the text of the instrument this expression occurs three times, as follows:
First—“ The remaining sum of forty-five thousand dollars to be paid upon the recovery of the possession of said land, or in proportion to any part thereof.”
Second—“Said sum of forty-five thousand dollars” (is to be paid) “ when they ” (the vendors, Leese and Yale) “shall have legally recovered possession thereto” (lot No. 327), “ provided said grant is so decided as to include ” said lot.
And, lastly—“ This instrument of writing is not intended to act as a mortgage or lien upon the described premises before the recovery of the possession thereof, as herein provided.”
Abstractly considered, the plain and obvious import of this language would be to the effect that the vendee was not to pay the purchase money, beyond the sum of five thousand dollars until the vendors had obtained the actual possession of the lot by an action upon their title brought expressly for that purpose. But we think it is clear from all the circumstances of the case that the language in question was not used in that sense. Where any doubt exists as to the true meaning of a written instrument, it must all be read together and in the light of surrounding circumstances. We must consult the condition and motives of the contracting parties as developed either by the recitals in the instrument if such there be, or by outside matters resting in evidence, for the purpose of ascertaining what was the real intention of the parties, which, when accurately ascertained, must always prevail over the literal sense of terms. (The People v. Utica Insurance Company, 15 John., 380; Whitney v. Whitney, 14 Mass. 92.) These circumstances are detailed in the complaint, which, for the purposes of our decision must be taken as true; for the question before us is presented upon demurrer. They are substantially as follows: Baker, the vendee, was in actual possession, without any title whatever. Leese and Yale, the vendors, were the owners and holders of a Mexican grant which they claimed to be valid, and which would, as they claimed, when confirmed and located, embrace the lot in question. This grant had been presented to the Board of Land Commissioners established by the Government of the United States for the purpose of adjudicating upon all such claims, and was still pending before them, undertennined. Their title, if they had any, was inchoate, and might or might not become perfect. Under these circumstances the parties meet, they of the first part to sell and he of the second part to buy. The vendee is willing to give five thousand dollars unconditionally, and to that extent take the chances. If, however, the title proves to be good, he is willing, upon that condition,
Moreover, this agreement affords internal evidence in support of the latter intent. Where it is apparent that the parties to a contract have attached to certain words or expressions a particular meaning, it must be presumed, nothing to the contrary appearing, that the same meaning was intended wherever like words or expressions are subsequently employed.
From the recitals found in the fore part of the instrument, it appears that the vendors are the owners and holders of a
While it must be admitted that the language here employed is far from being the most appropriate to an apt expression of the intent wdiich we are compelled to accord to it, we think there can be no rational doubt as to what the true meaning of the passage is. They here speak of a claim for the possession which they are “now” engaged in prosecuting, and which they intend to “further ” prosecute to a final result. This description, however inexact it may be, cannot possibly refer to any other action or proceeding than that then pending before the Board of Land Commissioners, for there was no other action pending at the time, 'and which they could intend to “ further ” prosecute. While that was not, in a strict sense, an action for the possession, yet they characterize it as such, and thereby indicate clearly what they mean when they speak of “ recovering the possession of the land.”
Again: In the last clause of the instrument we find the following expression. * * * * “ Before the recovery of the possession thereof, as herein provided” Now there is no “ recovery of the-possession ” provided for in the iristrument, except such as might result from a confirmation of their claim by the Board of Land Commissioners and the procurement of a patent from the Government of the United States. .
For the foregoing reasons, briefly stated, we think that the test of the soundness of the vendors’ title agreed upon between the parties was to be a patent from the Government of the United States, and when that was obtained, the money was
Judgment affirmed.