Brannan v. Mesick.

BRANNAN v. MESICK et al.

The first step in the construction of a deed, is to ascertain the understanding and intention of the parties at the time of contracting.

To arrive at this intention, the situation of the parties, and the subject-matter at the time of contracting, should be considered; the whole deed should be taken together, and, if possible, effect should be given to all its parts, although the immediate object of inquiry be the meaning of an isolated clause.

Oral evidence is sometimes admissible to explain, but not to contradict or vary the terms of a written contract; thus, if the words of a contract be ambiguous, its meaning may be gathered from contemporaneous facts which intrinsic testimony establishes. If, when the intention is thus ascertained, it is found that the words will fairly bear a construction which makes them express this intention, then the words will be so construed, and the contract, with this interpretation, enforced as the contract of the parties. The distinction between patent and latent ambiguities, is now regarded as intended to enable the Court to distinguish between cases curable and those of incurable uncertainty. A executed to B, C, D, and E, an instrument which commences in the ordinary form of a deed of bargain and sale, purporting to convey to them, in consideration of $125,000, the property therein described, with a general warranty of title against the claims of all persons; this clause then followed by a power of attorney authorizing the grantees to take possession, sell, and convey, or lease the property, in the name of the grantor, and to receive the purchase-money and rents, and that grantor would not sell, lease, or authorize any other person to sell or lease the premises, or revoke the power given, unless the grantors neglected to pay the said sum of $125,000, in instalments, specified therein, with a covenant that if said amount was paid at the time specified, the instrument should take effect as a full and complete conveyance in fee of the property; and also a covenant, that if grantor should fail to fulfill his covenants, the instrument should take effect as a conveyance: Held, that such instrument was intended as a conveyance upon condition precedent, and that grantees could acquire no title under it until the condition was performed, and when so performed, the title vests in the grantees without any further act on the part of the grantor.

Such condition precedent must be strictly and punctually performed before the estate can vest or be enlarged.

The registration of such instrument is sufficient to put a subsequent purchaser on inquiry as to the performance of the conditions.

Until the payments are made, the title is in the grantor, and would pass to a subsequent purchaser after the time fixed for the payments.

APPEAL from the District Court of the Sixth Judicial District, County of Sacramento.

This is a proceeding in equity to remove a cloud from plaintiff's title to cetain lots in Sacramento city.

Plaintiff deraigns title from John A. Sutter, Jr., through a conveyance executed on the 20th of June, 1850, in favor of the plaintiff, S. C. Bruce, Julius Wetzlar, and James S. Graham, which is as follows:

John A. Sutter, Jr., to Samuel Brannan, Samuel C. Bruce, Julius Wetzlar, and James S. Graham.-This indenture, made the twentieth day of June, in the year one thousand eight hundred and fifty, between John A. Sutter, Jr., of the city of Sacramento and State of California, of the first part, and Samuel Brannan, of the

Brannan v. Mesick.

city of San Francisco, one-fourth interest-Samuel C. Bruce, of the city of Sacramento, one fourth interest-Julius Wetzlar, of the city of Sacramento, one-fourth interest-James S. Graham, of the city of San Francisco, one-fourth interest-parties of the second part, witnesseth that the said party of the first part, for and in consideration of the sum of one hundred and twenty-five thousand dollars, ($125,000,) in hand paid by the said parties of the second part, (the receipt whereof is hereby acknowledged,) has granted, bargained, and sold, and by these presents does grant, bargain, and sell, unto the said parties of the second part, and their heirs and assigns forever, all the estate, right, title, interest, claim, or demand whatsoever, of him, the said party of the first part, either in law or equity, of, in, and to, the following described property, situate, lying, and being in the city of Sacramento and State of California, consisting of two thousand two hundred (2200) town-lots, be the same more or less; said lots being bounded according to the original plat or plan of said city and including a lot in said city bounded and described as follows, to wit: Lot number two, (2,) in the square between J and K and Third and Fourth streets, commencing at a point on the northeasterly corner of said lot, running thence southerly on a line parallel with Third street one hundred and sixty feet to an alley, thence westerly along said alley twenty-five feet and eight inches, thence northerly on a line parallel with said Third street one hundred and sixty feet to said J street, thence easterly along said J street twenty-five feet and eight inches, to the place of beginning.

Also, five (5) shares, except the lots sold up to date, in the town of Eliza, said town being situate on the east bank of Feather River, in the county of Yuba, and State of California.

Also, one (1) share in Plumas City, said city being situate in the county of Yuba, and State of California-said share being the eightieth part of said city, and consisting of thirty-six town-lots, numbered as follows: Lot number eight, (8,) in block number six (6;) lot number two, (2,) in block number three hundred and fourteen (314;) lot number three, (3,) in block number three hundred and three (303;) lot number eleven, (11,) in block number eight (8;) lot number two, (2,) in block number twenty-nino (29) lot number three, (3,) in block number twenty-one (21;) lot number two, (2,) in block number one (1;) lot number five, (5,) in block number forty-six (46;) lots number one, (1,) two, (2,) three, (2,) and four, (4,) in block number forty-nine (49;) lots number five, (5,) six, (6,) seven, (7,) and eight, (8,) in block number one hundred and thirty-four (134;) lots number one, (1,) two, (2,) three, (3,) four, (4,) five, (5,) six, (6,) seven, (7,) and eight, (8,) in block two hundred and twenty-one (221;) lots number one, (1,) two, (2,) and three, (3,) in block two hundred and

Brannan v. Mesick.

three (203;) and lot number five, (5,) in block one hundred and twenty-nine (129.)

Also, a portion of the fifty-vara lot number sixty-two, (62,) on the official map of the city of San Francisco, and having a front of thirty six feet on Pacific street, by one hundred feet deep, running back towards Broadway street; said piece of land being on the southwest corner of said lot sixty two, (62,) and situate one hundred and one-half feet from Dupont street.

Also, twelve lots in the town of Nicolaus, being each one hundred feet in length and eighty feet in width, and numbered as follows: Lot number six, (6,) in block number eight (8;) lot number ten, (10,) in block number sixteen (16;) lots number three, (3,) and four, (4,) in block number eighteen (18;) lot number six, (6,) in block number forty-four (44;) lot number two, (2,) in block number forty-five (45;) lot number five, (5,) in block number forty-six (46;) lot number one, (1,) in block number forty-three (43;) and lots number one, (1,) five, (5,) six, (6,) and ten, (10,) in block number fifty-two (52.)

And, also, that certain tract of land situate on the Sacramento River, commencing at a point on the east bank of said river, adjoining the land owned by George McKinstry, running thence up the said river-bank along the low-water-line, one-half mile; thence in a direct line back from said river one mile; thence in a line parallel to the aforesaid river-line southerly one-half mile, and thence to the place of beginning. Being that certain tract of land situate, lying, and being, between the southerly boundary of Sacramento city, and the town called Sutter, or Sutterville. Together with all and singular the tenements, hereditaments, privileges, and appurtenances thereunto belonging, or in any wise appertaining; to have and to hold the above-granted premises unto the said parties of the second part, and to their heirs and assigns, to their use, benefit, and behoof, forever.

And the said party of the first part, for himself, his heirs, executors, and administrators, doth hereby covenant to and with the said parties of the second part, their heirs and assigns, that the title to the property of the party of the first part, above conveyed, or attempted to be conveyed, by the said party of the first part, to the said parties of the second part, their heirs and assigns, he will forever warrant and defend against the claim or claims of all persons whatsoever. And the said party of the first part doth further covenant to and with the said parties of the second part, their heirs and assigns, that he, the said party of the first part, shall and will make, constitute and appoint, and by these presents doth make, constitute and appoint, the said parties of the second part his true and lawful attorneys, for him and in his name, place, and stead, to enter into and take possession of all such lands, tenements, hereditaments, and real estate whatsoever and wheresoever, in the State of California, to or in

Brannan e, Mesick.

which the said party of the first part is, or may be in any way, entitled or interested; and to grant, bargain, sell and convey the same, or any parcel thereof, for such sum or price, and on such terms, as to them shall seem meet, and for him, the said party of the first part, and in his name, to make, execute, acknowledge, and deliver, good and sufficient deeds and conveyances for the same. And, until the sale or sales thereof, to let and demise the said real estate, and to ask, demand, restrain for, collect, recover, and receive all sums of money which now are or may become due and owing to the said party of the first part, his heirs, executors, administrators, and assigns, by means of such bargain and sale, or lease and demise, giving and granting unto the said parties of the second part, their heirs and assigns, full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises, as, to all intents and purposes, the party of the first part might or could do, if personally present. And the said party of the first part, for himself, his heirs, executors, administrators, and assigns, doth further covenant to and with the said parties of the second part, their heirs and assigns, that he, the said party of the first part, his heirs, executors, administrators or assigns, shall not use, will, sell, or in any way dispose, or authorize any other person or persons to sell, or in any other way dispose of any lands, tenements, hereditaments, and real estate whatsoever, to which he, the said party of the first part is, or may be in any way entitled or interested, or to receive from any person or persons, any sum or sums of money which are due and owing to the said party of the first part for the sale of any real estate, or in any way impair or revoke the power hereby given to the said parties of the second part, their heirs and assigns, by the said party of the first part, unless the said parties of the second part, their heirs or assigns, neglect or refuse to pay to the said party of the first part, his heirs, executors, administrators, or assigns, the just and full sum of twentyfive thousand dollars, ($25,000,) on or before the first day of July, in the year one thousand eight hundred and fifty; and the further sum of twenty-five thousand dollars, ($25,000,) on or before the twenty-ninth day of September, in the year one thousand eight hundred and fifty; and the further sum of seventy-five thousand dollars, ($75,000,) on or before the first day of July, in the year one thousand eight hundred and fifty-one; making, in all, the just and full sum of one hundred and twenty-five thousand dollars ($125,000.)

And the said party of the first part, his heirs, executors, administrators, and assigns, doth further covenant, to and with the said parties of the second part, their heirs and assigns, that in case the said parties of the second part, their heirs and assigns, pay to the said party of the first part, his heirs, executors, ad

Brannan v. Mesick.

ministrators, or assigns, the just and full sum of twenty-five thousand dollars, ($25,000,) on or before the first day of July, in the year one thousand eight hundred and fifty; and the further sum of twenty-five thousand dollars, ($25,000,) on or before the twenty-ninth day of September, in the year one thousand eight hundred and fifty; and the further sum of seventy-five thousand dollars, ($75,000,) on or before the first day of July, in the year one thousand eight hundred and fifty-one; making, in all, the just and full sum of one hundred and twenty-five ($125,000 ;) then this instrument is to take effect as a full and complete conveyance, in fee, of all and singular the lands, tenements, hereditaments, appurtenances, and real estate in the State of California, belonging to or in which the said party of the first part, his heirs, executors, administrators, or assigns, is, or are, in any way entitled or interested. And the said party of the first part, for himself, his heirs, executors, administrators, and assigns, doth further covenant to and with the said parties of the second part, their heirs and assigns, that in case the said party of the first part, his heirs, executors, administrators, or assigns, in any way neglect or refuse to fulfill the above covenants, made by the said party of the first part, for himself, his heirs, executors, administrators, or assigns, then this instrument is to take effect immediately thereupon, as a full and complete conveyance, in fee, of all and singular the lands, tenements, hereditaments, appurtenances, and real estate, whatsoever and wheresoever, in the State of California, belonging to or in which the said party of the first part, his heirs, executors, administrators, or assigns, is, or are, in any way entitled or interested.

In witness whereof, the said party of the first part hath hereunto set his hand and seal the day and year first above written. JOHN A. SUTTER, JR.

Sealed and delivered in presence of R. H. Stanley and S. B. Marchall.

State of California, City and County of Sacramento: ss.-On this twentieth day of June, in the year one thousand eight hundred and fifty, personally appeared before me, a notary public, in and for the said county, John A. Sutter, Jr., known to me to be the person described in and who executed the foregoing instrument, who acknowledged to me that he executed the same freely, and voluntarily, and for the purpose therein mentioned.

S. B. MARCHALL, Notary Public. Filed for record June 20, 1850, at 8 o'clock, P. M., and duly recorded in book D of Deeds, pages 191, 192, 193, 194, and 195. LEWIS T. BIRDSALL,

Recorder of Sacramento County, Cal.

By F. J. ABY, Deputy.