Sherlock v. Gerlach

NOURSE, J.

This is an action for damages for breach of an executed written contract for the exchange of real properties or for the rescission of the contract. By the terms of the contract the plaintiffs agreed with the defendant Andrew J. Gerlach to exchange their “Madrone Ranch,” consisting of 18.84 acres of orchard land in Santa Clara County for property near Aromas, Monterey County, known as the “M. B. Tuttle Ranch,” of record in the name of said defendant. In addition to the conveyance of the “Madrone Ranch” plaintiffs gave a note for $5,000 secured by a mortgage on the Aromas property which they acquired from said defendant in the exchange. The basis of the action is the alleged shortage in acreage in the property conveyed by defendant Andrew J. Gerlach. The grounds upon which the plaintiffs rely, as stated in their briefs, are “material error in description, mistake and misrepresentation, fraud or gross mistake equivalent to fraud, and for breach of covenant of seisin or possession.” The prayer of the complaint is for damages in the sum of $7,749,94, or a reconveyance to plaintiffs of the “Madrone Ranch” and cancellation of said note and mortgage, or an abatement of said note and mortgage as part of the exchange price of the lands. The trial court found adversely to plaintiffs on all material allegations of their complaint 'and rendered judgment for the defendants. The appeal is from this judgment and is taken under section 953a of the Code of Civil Procedure.

Defendants A. P. Gerlach and Adella C. Gerlach were the father and mother, respectively, of defendant Andrew J. Gerlach. At the time of the exchange defendant Andrew J. Gerlach had the deed to the Madrone Ranch made to his mother and the said note for $5,000 and mortgage on the

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M. B. Tuttle ranch made to his father instead of to himself. The title stood thus at the time suit was commenced. Because of this the father and mother were made defendants.

It is not questioned that the actual acreage of the land conveyed by respondent A. J. Gerlach to appellants was less than that named in the deed. This deed described the property by metes and bounds and then added “and containing 210 acres of land, more or less; and being the same land described in deed dated September 6th, 1887, of record in Volume 16 of Deeds at page 167, in the office of the County Recorder of Monterey County, California; saving and excepting therefrom 79/100 of an acre,” etc. Then follows: “Also all the right, title and interest of the said party of the first part in and to that certain 38 acres adjoining said 210 acres hereinabove described, which have been occupied by the owners of said 210 acre tract for many years.”