2 Nev. 354 | Nev. | 1866
Opinion by
This is a proceeding to enforce a vendor’s lien which the plaintiff claims against certain property located on the Carson River, in the County of Ormsby. The property upon which it is claimed was sold by the plaintiff to the defendants on the 2d day of July, a.d. 1863, for the sum of three thousand dollars, two thousand of which -was paid at the time of conveyance, the remaining thousand dollars .was, by agreement of parties, to be retained by the defendants for six months from that time to indemnify them for any adverse claim against the premises which they might be compelled to extinguish during that time. That portion of the written agreement which is material in this case reads as follows: " And whereas, the said Railey and Johnson have paid two thousand dollars in cash to said Walter, and there remaining unpaid one thousand dollars, which is held as security by said Railey and Johnson to protect them from any adverse claim which may be set up to said property, franchise, or privileges, or any part thereof, by any other person or persons; now, therefore, if the said Railey and Johnson, their heirs or assigns, shall not, within six months herefrom, have to pay for the release or discharge of any adverse claim against said property or franchise, or part thereof, or have recovered against them any part or portion thereof, then the said Railey and Johnson agree to pay to said Walter, his heirs or assigns, the said sum of one.thousand dollars in gold coin of the United States, at the expiration of six months herefrom; otherwise this bond tobe null and void.” The defendants having been compelled, as they claim, to purchase an adverse claim against the premises within the six months designated in the instrument above referred to, refused, and do now refuse to pay to the
It is, however, insisted upon by the plaintiff that the adverse claim set up by Hayt and Hill, and purchased by the defendants, was entirely without foundation or color of right, and could not be maintained as a valid right or title to the land in question ; that no suit had been commenced against the defendants to eject them therefrom ; that they have, ever since the conveyance to them, continued in possession of the premises, and that the purchase of the claim from Hayt and Hill was not necessary to maintain their possession. Such being the state of facts, the plaintiff claims, that under a proper construction of the bond or agreement between him and the defendants, he should recover the balance of the purchase money. In this view of the case, we are disposed to agree with counsel for plaintiff. It is clear, beyond all question, from the evidence presented to us, that the Hayt and Hill claim was but the airy fabric qf the imagination — a claim of right without foundation— and that had they commenced suit against the defendants to obtain possession of the premises it is hardly within the range of possibility that they could have recovered, even after making due allowance for all uncertainties attending trial by jury. Indeed, there seems to have been no effort on the part of the defendants in the Court below to show that the Hayt and Hill claim possessed any substantial virtue, or that there was any probability that they would ever have been evicted under it, or that it was in any manner a paramount title. The payment of money to extinguish or purchase such a claim does not come within either the letter or spirit of the instrument referred to. It could not have been the intention of the plaintiff to allow the one thousand dollars due him to be retained as security against any sham or invalid claims which might be made against the premises. The words of the instrument are: “ Now, therefore, if the said Railey and Johnson shall not, within six months after the execution of the conveyance, have to pay for the release or discharge of any adverse claim, they will pay to the defendant the balance of one thousand dollars.”
The only rational interpretation which can be placed upon this
By those words the parties certainly could not have meant all claims, whether founded in right or not, which might be set up to the premises, but only such claims as in all human probability would be held paramount or superior to that of the defendants. Instruments of writing must be interpreted so as to carry into effect the intention of the parties, and in ascertaining that intention, and construing the language employed by them, it is often necessary to resort to those known philosophical principles which in general govern the conduct of rational beings. All men have some degree of prudence in their nature, and are not disposed to place their rights at the disposal of the public, or to surrender their property to the first person who may make a claim to it, without a show of right. If we accord to the plaintiff even that ordinary prudence and discretion which men usually exhibit in transactions of this character, ire cannot conclude that he intended to bind himself to relinquish his right to a third of the purchase money 'of his property if any adverse claim, whether founded in right or not, should be set up to the premises. Neither can we believe that the defendant Avould have required anything so unreasonable from the plaintiff. Clearly, the thousand dollars was retained as security for the defendants against any valid or substantial right or title which, within six months from the time of the conveyance, they might be compelled to discharge.
It is evident, therefore, that, to make the defense good, the defendants should have shown that the claim or title which they purchased was a substantial and valid one. This was not done, and hence we must affirm the order of the Court below granting the plaintiff a new trial.
It is so ordered.
