Peiser v. Bradbury

HAYNES, C.

This appeal is from the judgment up on the judgment-roll alone. Mrs. Peiser, wife of the plaintiff, on May 1, 1889, purchased from J. Fisher Smith two lots in the city of San Francisco, for the price of seven hundred dollars each, and paid in full for one of the lots, and received a deed conveying that lot to her, and a contract to convey the other

[571]

upon payment of the several installments of purchase money stated therein.

On June 21, 1889, she executed to one Griffin a deed purporting to convey to him both lots, and on June 24, 1889, Griffin executed a deed to defendant Bradbury, purporting to convey both lots. Griffin paid no consideration for the conveyance to him, but Bradbury paid to Griffin five hundred dollars as the consideration for his conveyance. Neither Griffin nor Bradbury ever paid anything to Smith or to any one upon the contract for the second lot. No further reference need be made to the first lot (which was paid "for and conveyed to Mrs. Peiser), as respondent concedes, or at least acquiesces in the conclusion that his claim thereto is barred by the statute of limitations, so that what is said hereafter relates solely to the second lot, unless the first is specially referred to.

The assignment of the contract for the second lot was made by Mrs. Peiser to the plaintiff, who paid to Smith the money due under said contract in full, and demanded a deed therefor, which his heirs at law (he having died, and his estate having been distributed to them) were ready to make when it should be determined who was entitled thereto.

The court, in addition to the foregoing facts, found that all the money paid for both lots was paid by the plaintiff out of moneys earned by him after his marriage to Mrs. Peiser; that he had been in possession of the property during all the times mentioned in the complaint; that Bradbury was not a

tona fide

purchaser, but took the conveyance thereof with notice of the plaintiff’s rights thereto; that he paid nothing towards the fulfillment of said contract; and that at the time he took said conveyance no part of the purchase price had been paid.