93 Cal. 92 | Cal. | 1892
The action is ejectment to recover “lot 4 of section 30, in township 15 south, of range 3 east, M. D. M.,” situate in the county of Monterey, the complaint being in the usual form, but not verified.
The answer “ denies generally and specifically each and every allegation in the said complaint.”
The defendant also filed a cross-complaint, in which he alleged, substantially, the following facts: That on June 17, 1885, Frederick Egan executed to defendant a quitclaim deed for land therein described as follows: “ All that part of lot 5 in section 30, of township 15 south, of range 3 east, M. D. M., according to the public land surveys of the United States, which lies to the south and west of a certain ledge of rocks on the easterly side of and running along a ravine which crosses said lot 5 in a direction southeasterly and northwesterly.”
This deed was acknowledged and recorded on the day of its execution.
It is then alleged “ that the description therein [in ' the deed] given of the premises intended to be conveyed was erroneous, in this: that a portion of the land intended to have been conveyed by said Egan in said deed lay in lot 4 of the same section, but at the time said deed was made, viz., June 17,1885, defendant, Corey, was informed and believed, and so it was mutually understood between the said parties thereto, that the land intended to be conveyed all lay in lot 5 of said section 30, as set forth in said deed, and under such belief said Corey accepted said deed, and immediately went into the possession of the land intended to be conveyed, and has, since said June 17, 1885, possessed, owned, and occupied the same, all of which plaintiff herein well knew; that in order to make said deed pass the premises intended to have been conveyed by said Egan, and understood to have been conveyed by said defendant herein (Corey), and to make it conform to the actual intention of the parties, it is necessary that the said description should
It is then alleged that upon discovering the error, defendant demanded of plaintiff a deed of the land claimed by defendant as above described, and that plaintiff refused, etc.
At the instance of plaintiff a jury was called, to which special issues tendered by the cross-complaint were submitted. Upon each of these special issues the jury found for the defendant. The court adopted the verdict, and added findings of its own, all in favor of the defendant, whereupon it was adjudged and decreed that defendant is the owner of all that part of lot 4 lying south of ledge of rocks extending across the same, as per defendant’s proposed amendment of the description in his deed from Egan, and that plaintiff convey all his right and title to such part of lot 4 to the defendant within ten days.
The cross-complaint was demurred to generally, and also on special grounds not urged here.
While the cross-complaint is not to be commended as a precedent, I think it sufficient to stand the test of a general demurrer. All the facts necessary to entitle the defendant to the relief sought, not directly stated, are necessarily inferable from those stated. It is contended, however, that no agreement to convey any part of lot 4, nor any mutual mistake, is alleged.
It is alleged, substantially, that it was the mutual understanding and intention of the parties that the land in controversy should be described in and conveyed by the deed set out in the cross-complaint. This seems to be a sufficient averment of an agreement to convey; and if the parties mutually intended to describe the land in that deed, how could it have happened, otherwise than by mutual mistake, that they did not describe it? The mutual intention to describe it negatives the idea that the omission may have resulted from fraud.
The findings are full and explicit upon all the issues, and support the judgment.
There is some conflict in the evidence, but it seems to preponderate considerably in favor of the findings.
The court did not err in overruling plaintiff’s objection to the testimony of R. Corey as to the declaration and acts of Egan in relation to the land in controversy before he conveyed to plaintiff. (Code Civ. Proc., sec. 1849.)
I think the judgment and order should be affirmed.
Fitzgerald, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion, the judgment and order are affirmed.