Taggart v. Graham

JAMES, J.

The court in this action rendered judgment in favor of the plaintiff for the sum of five hundred dollars, with interest and costs. The appeal is taken from such judgment and is presented on the judgment-roll and a brief bill of exceptions.

Plaintiff contracted to purchase from defendant certain real property. He paid five hundred dollars on the execution of the contract and was to pay the further sum of two thousand two hundred dollars at a later date. The contract contained this agreement: “And the party of the first part [the defendant] on receiving such payment, at the time and in the manner above mentioned, agrees to furnish to the party of the second part an unlimited certificate of title of the Union Title Co. of San Diego as of such date, showing title to said premises to be vested in the party of the first part free from all encumbrances, ...” Plaintiff alleged in his complaint that he paid the five hundred dollars and that he “has stood ready, willing, and able to perform all of the covenants in said contract contained, and has so informed the defendant, that he would pay the defendant the sum of two thousand two hundred dollars, remaining due on said contract, at any time that the defendant would deliver the said property to the plaintiff with a certificate of title made by the Union Title Company of San Diego, California, as agreed to be done by the defendant herein; that defendant, at no time, has ever offered to comply with the terms of said contract in this: that the defendant would give the plaintiff a title to the said property under certificate of title from said Union Title Company of San Diego, but, on the contrary, the defendant has refused and still refuses so to convey said property to the plaintiff under said title so agreed upon.” It was further alleged by the plaintiff that, in lieu of the certificate of the Union Title Company, the defendant had de

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manded of the plaintiff that he accept a certificate under the Torrens land registration law, which defendant would not accept. The answer admitted that the certificate of the Union Title Company could not be furnished because of the refusal of said Title Company to make a certificate on the land in question, the refusal, as alleged, being based upon the fact that such Title Company would not issue certificates on land registered under the Torrens law. It was also alleged in the answer that no tender was made on the part of the plaintiff of the two thousand two hundred dollars, the second payment to be made under the contract. There was no demurrer to the complaint, and by the allegations of the answer it was admitted that the defendant could not comply with his contract had a tender been made, in the particular of furnishing a certificate of title from the Union Title Company.