City of Fort Bragg v. Brandon

BRITTAIN, J.

The plaintiff, city of Port Bragg, appeals from a judgment against it in a suit to quiet title.

The respondent contends the city’s title was equitable only, and, therefore, not sufficient to support a suit to cjuiet

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title. The appellant contends the deed from the city under which respondent claims was void, and, therefore, the legal title is still in the municipality.

The board of trustees of the city of Fort Bragg, incorporated under the Municipal Corporation Act of 1883 (Stats. 1883, p. 93) and amendments thereto, on April 14, 1908, adopted a resolution to sell the land in controversy for ten thousand dollars, gold coin, and to apply the, proceeds of the sale to the purchase of a city park. On April 27, 1908, the trustees adopted another resolution reciting the former one and the making of a conveyance under it to the respondent. The second resolution also recited that the, president of the board of trustees had received from Brandon the sum of ten thousand dollars, and it' purported to authorize the president to purchase for use solely as a city park at a cost not to exceed ten thousand dollars the same land. A deed, referring to the incorporation of the city under the Municipal Corporation Act and to the first of the two resolutions, bearing date April 20, 1908, was made to David Brandon, the respondent. The deed also recited the receipt of ten thousand dollars in gold coin paid by Brandon. It was acknowledged on the same day, but not recorded until May 4, 1908. Under date of April 25, 1908, Brandon by a deed, reciting the payment of ten thousand dollars gold coin to him by the city, purported to convey the property to the municipality upon three conditions —first, that it was to be held without partition or division, to be used permanently as a city park and for no other purpose; second, that the municipality should never give away, sell or otherwise dispose of the property or any part thereof; and, third, upon breach of either of the other conditions that Brandon, his heirs or assigns, might re-enter and possess- his former estate. This deed was acknowledged on April 27, 1908. It was also recorded on May 4, 1908, two minutes after the first deed. Both were recorded at the request of W. GL Tone's, who was then “the city clerk. It was his duty to keep a record of the treasurer’s account. The account failed to show the payment of any money by or to Brandon. Brandon testified he paid no money to the city of Fort Bragg, but made his promissory note, which was returned to him when the second deed was made. The city clerk testified he never received the note and the treas