41 Cal. 221 | Cal. | 1871
The first point of inquiry is, whether the instrument from Gowen to Alexander McKay, of April 26th, 1856, was operative as a deed to convey the legal title of Gowen to the demanded premises; for. if it had that effect it is evident the defendants are estopped by the judgment in the case of McKay v. Petaluma Lodge and others, from again litigating
“Article of agreement made and entered this 26th day of April, A. D. 1856, between Heber Gowen of the first party, and Alexander McKay of the second party, witnessed that said party of the first party, for and in consideration of the premises, and hereby covenants and agrees to give up all right and title to the party of the second party since all his assigns forever hereafter, all the following described property hereafter mentioned on Main street, Petaluma, California: The second story of the store part of five feet for an entrance for the use of a passage up stairs, and as they are now in use and occupied for the Odd Fellows and Masons.
“ Hereunto the above agreement set my hand and seal this 26th day of April, in the year 1856.
[seal.] (Signed,) “HEBER GOWER.”
Rotwithstanding the very awkward, inaccurate, and obscure language of this instrument, I think it is capable of interpretation,-when considered in the light of the surrounding facts. McKay owned the strip five feet wide; but the outer wall occupied about two feet of this space, and the stairway covered not only the remainder, but also a small portion of Gowen’s lot. McKay, by his tenants, the Masons, was in the possession of the second story, in accordance with the parol agreement, and Gowen obviously intended by this instrument, made on the eve of his departure on a long journey, to define.McKay’s rights in the property. Hence he covenants and agrees to “give up” to him “all right and title” (to) “all the following described property hereinafter mentioned, on Main street, Petaluma, California: The second story of the store and part of five feet of ground for an entrance for use of a passage up stairs, and as they are now in use and occupied for the Odd Fellows and Masons.” By interpolating the word “and” between the words “store”
I am, therefore, of opinion that the instrument was not void for uncertainty, and that it was operative to convey, and did convey, to McKay all the title of Gowen, legal or equitable, in and to the second story and the stairway. From this view of the legal effect of the instrument, it results that McKay had the legal title of Gowen at the commencement of the action against Petaluma Lodge and others, and is, therefore, estopped by the judgment in that action from again litigating the title in the present action.
But the defendants claim that the deed from Gowen to Hill, under which the plaintiff deraigns title, was a conveyance in trust, with a power of sale, for the purpose of satisfying the trust debt, but for no other purpose; and that the proofs show the trust debt was paid before the conveyance from Hill to Meachem, and this conveyance is void for want of authority in Hill to make it. That the deed from Gowen to Hill conveys the fee, and that Hill had the power, in execution of the trust, to transmit the legal title to a purchaser, is too plain for debate.
As this record presents the facts, there is nothing to show that the conveyance to Meachem was not made in execution of the trust, and for payment of the trust debt. It appears on the face of the deed to Hill that the property was already incumbered, and the plaintiff offered to prove that he had been compelled to disburse large sums to remove prior incumbrances, and to preserve the trust fund for the security and satisfaction of the trust. On the objection of the defendants this proof was excluded by the Court, and it is not for them to complain that the plaintiff has failed to show how
The only remaining point is as to the effect of the conveyance from the heir at law, of Go wen to the defendants pendente lite. It is sufficient, on this point, to say that it has been frequently decided by this Court that a defendant cannot avail himself of a title acquired during the pendency of the action, "unless it is set up in a supplemental answer. If acquired after the original answer was filed, he should set it up in an amended answer, on leave of the Court. Otherwise it will not avail the defendant on the trial.
Judgment affirmed.
.Keither Mr. Justice Wallace nor Mi’. Justice Temple expressed an opinion.