Horne v. Hughes

ALLEN, P. J.

The allegations of the complaint, in substance, are these: Plaintiff bought of defendant an undivided half interest in a tract of land at Wilmington, paying therefor the sum of $675, defendant executing to plaintiff a bargain and sale deed. At the time of the sale and conveyance the defendant represented to plaintiff that she had a good and perfect title to the land and authority to sell and convey the same. Plaintiff relied upon these representations and believed them to be true, and upon the faith thereof paid the purchase price and accepted the conveyance. As a matter of fact, defendant had no title to said premises and owned no interest therein; that she believed at the time, as did plaintiff, that a certain conveyance theretofore made under which

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she claimed title was valid, hut in truth the same was a forgery, and defendant by reason thereof derived no title on account of such conveyance; that plaintiff did not discover this fact until in the year 1908, when such deed so made to defendant was by a court of competent jurisdiction declared to be invalid and a forgery. The action was brought to recover the amount of the purchase price so paid, with interest. A general demurrer was interposed to the complaint, which was by the court below sustained, and the complaint not being amended, judgment was rendered in favor of defendant for costs. From this judgment plaintiff appeals. It clearly appears from the averments of the complaint that the money paid in consideration of the execution of the deed and the whole transaction was occasioned by a mutual mistake of fact and such a one as is contemplated by subdivision 2 of section 1577 of the Civil Code. Section 1689 of the Civil Code confers the right of rescission, if the consent of the party rescinding was given by mistake, or if the consideration becomes entirely void from any cause. This transaction clearly comes within the provisions of the above-named sections.

(Hartwig

v.

Clark,

138 Cal. 671, [72 Pac. 149].) Defendant having no interest in the premises, her deed conveying none to plaintiff, no necessity existed for a reconveyance or tender thereof before the action was brought. Plaintiff received nothing which he could tender back and defendant parted with nothing that she was entitled to have tendered to her as a condition precedent to the bringing of the action. We are of the opinion that the complaint stated a good cause of action, and that the court erred in sustaining the demurrer thereto.