Goldstein v. Hensley

COOPER, J.

This is an action to recover damages for alleged breach of a contract to convey real estate. The findings were for defendants, and judgment was thereupon entered. This appeal is from the judgment and the order" denying plaintiff’s motion for a new trial.

There is no question as to the facts that the plaintiff paid to the defendant the sum of $600 on April 14, 1904, being the purchase price for lots 12 and 45 in block 7 in San Bruno Park, and that defendants agreed to give the plaintiff a deed to said premises. Defendants claim that they did make, execute and deliver the .deed as they agreed to do, and the court found that they did so, and that they complied with their contract. This finding is challenged as not being supported by the evidence, and we are of opinion that the contention will have to be sustained. It may be conceded that the evidence is sufficient to show that a deed was, by the previous request of plaintiff, sent to the county recorder of the county of San Mateo and placed of record, and that under the circumstances of this case the evidence was sufficient to show a delivery of the deed which was recorded, but such delivery was not a delivery of the deed called for by the contract, because no such deed was executed. The receipt for the purchase price was as follows:

“Apr. 14th, 1904.

“Received from S. Goldstein the sum of six hundred ($600) dollars, being deposit and part payment on purchase of two lots in San Bruno Park this day sold to him for the sum of $600.00. Title guaranteed.

“Lots applied for, Lots 12-45, Block 7.

“GEO. A. HENSLEY,

“Agent for Hensley-Green Co.”

This memorandum contained the implied representation1 that defendants had a good and sufficient title, and that they would execute a proper deed of conveyance transferring such title. The title tendered, under such agreement to convey,

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must have been free from litigation,' palpable, defects and grave doubts, fairly deducible of record and unencumbered. Without discussing the meaning of the words “title guaranteed,” it is plain that by it the defendants impliedly agreed to convey a good and sufficient title. It will be presumed that defendants intended, and by implication agreed, to convey all of the said lots and all their interest therein. The deed that was placed of record does not purport to convey the said lots in fee, but reserved certain rights for the use of defendants. The reservation is as follows: “Reserving, however, the exclusive right to construct, operate and maintain street or other railroads through, across, or upon the streets bounding said property, or that may be laid out thereon; said railroads to be operated by such power as to first parties may seem proper; also to lay, operate and maintain through, across and upon said streets, such gas, water and other mains, conduits for electricity, wires or cables as to the first parties may seem proper.” This conveyed the property subject to the right of defendants to operate and maintain railroads, to lay and operate gas, water and other mains, conduits for electricity wires, or cables, across or upon the streets bounding the said property. Not only does the reservation apply to the use of the streets bounding said property, but applies to all streets that may in future be laid out thereon. Whether or not the streets, in any event, might be used by public service corporations, or individuals engaged in such business, in supplying the town or the community with necessary means of transportation, gas, electricity, or water, need not be discussed. It is sufficient to say that the reservation in this deed is for the grantors, the defendants here. It is a reservation as to important rights and easements for private purposes. It is a reservation as to land agreed to be conveyed, that has never been laid out or used as a public street, but that may at some future day be so used. The agreement to convey contains no such reservations, and the deed recorded does not comply with the contract. The finding of the court is not to be given broader scope than the probative facts therein set forth, and hence the deed does not show that a good title was tendered, but, on the contrary, shows a title encumbered by important reservations of rights in the grantors.