66 Cal. 636, 8,248, Schroeder v. Wittram

Docket Nº:8,248
Citation:66 Cal. 636, 6 P. 737
Opinion Judge:McKEE, Judge
Party Name:C. SCHROEDER, Respondent, v. F. WITTRAM, Appellant
Attorney:C. Wittram, for Appellant. F. J. Castelhun, for Respondent.
Judge Panel:JUDGES: In Bank. McKee, J. Sharpstein, J., concurred. Myrick, J., Thornton, J., concurring. Morrison, C. J., dissenting. MYRICK; THORNTON MORRISON
Case Date:April 24, 1885
Court:Supreme Court of California
 
FREE EXCERPT

Page 636

66 Cal. 636

6 P. 737

C. SCHROEDER, Respondent,

v.

F. WITTRAM, Appellant

No. 8,248

Supreme Court of California

April 24, 1885

Rehearing denied.

Appeal from a judgment of the Superior Court of the city and county of San Francisco.

COUNSEL:

C. Wittram, for Appellant.

F. J. Castelhun, for Respondent.

JUDGES: In Bank. McKee, J. Sharpstein, J., concurred. Myrick, J., Thornton, J., concurring. Morrison, C. J., dissenting.

OPINION

McKEE, Judge

This is an appeal from the judgment of a Superior Court, rendered in a trial de novo of a case on appeal from the judgment of a justice's court, taken on questions of both law and fact. The contention made by the appellant is, that the judgment is void, because the justice's court had no jurisdiction to try and determine the action, it being an action in which the question of title to real property was involved.

Unquestionably, a justice's court has no jurisdiction of an action "which involves the title or possession of real property." Original jurisdiction to hear and determine such cases has been vested by the constitution in the several Superior Courts. (§ 5, art. VI., Cons.) But the very question here is, whether the action in which the judgment appealed from was rendered is of

Page 637

that character. We think it is not. It is, in its scope and object, merely an action to recover a deposit made by the plaintiff, as a party to an executory contract for the sale of real property, by which he agreed to purchase the property at a stipulated price if the title was good, and in which it was stipulated, "if the title should not be good, the deposit was to be immediately returned, fifteen days being given for legal search of title."

Upon an examination of the records of the title, made within the contract time, the plaintiff found that the land which he proposed to buy was incumbered, and that the title to it was not good. He thereupon immediately notified the vendor of the fact, and demanded a return of the deposit, and payment of the expenses incurred in the search of title. This the defendant refused, and the plaintiff brought the action in hand to recover judgment for the amount.

If the plaintiff could not obtain what he proposed to buy, i.e ., title to the land, he had the right to refuse to buy, and to recover back any money he may have deposited as security for the performance of his contract. This right is grounded upon the fact, as ascertained by him upon an examination of the records of the title, that the land was incumbered, [6 P. 738] or that the title was apparently defective. Where that fact exists, a purchaser of real property cannot be compelled to take it.

" It is a principle obviously just," says the Supreme Court of Maryland, "that a vendee is entitled to have that for which he contracts, before he can be compelled to part with the consideration he agreed to pay. He is not to take an estate fettered with incumbrances * * * He is not bound to accept anything short of an unincumbered legal estate in fee." (Gill v. Wells , 59 Md. 493.) So says the Court of Appeals of New York: "A contract to sell land can only be performed by a conveyance that will vest in the grantee an unincumbered and indefeasible estate." (Delavan v. Duncan , 49 N.Y. 485.) When, therefore, a purchaser of real...

To continue reading

FREE SIGN UP