McCombs v. Church

LENNON, J.

This is an appeal from a judgment in favor of the plaintiff in an action arising out of an exchange, of real estate. The merits of the appellant’s motion for a new trial, which was denied, are involved in the appeal from the judgment.

The facts are these: The plaintiffs owned and resided upon a tract of land in Orange County which they believed contained ten acres. The plaintiff N. McCombs brought the defendant Church to this tract and pointed out its boundaries, stating that he bought it for ten acres and that he supposed it to contain that much. The exchange, which also involved properties belonging to Church, was made by Church for the land as pointed out by McCombs. It was thought by both parties at this time that the tract contained ten acres.

An agreement in writing consisting of a proposal and an acceptance was executed wherein the McCombs’ property was thus described: “Second piece of property owned by N. McCombs, situated in Orange County, State of California, containing ten acres, two miles west of Fullerton, California, on good road's boulevard, improved with five-room California

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cottage, six acres in two year old valencias, four acres in one year old valencias, two acres oat hay, three acres potatoes, two acres cabbages. ’ ’ The valuation fixed upon the property was eleven thousand dollars. This was subsequently merged in a now written agreement consisting of escrow instructions deposited with a title insurance company. In execution of the escrow instructions, McCombs executed a deed to Church for “lots seven and eight of Stem and Nicolas subdivision of sections 31 and 32, township three south, range ten west, S. B. B. & M. as appears on a map plat thereof recorded March 9th, 1903, in book 3, page 13, of the miscellaneous maps, records of Orange County, California, estimated to contain 10 acres of land more or less.” In keeping with the escrow agreement, Church executed a mortgage back to McCombs on the same lands.

Five months later the deed and mortgage were sent to another title company for recordation, McCombs having announced the perfection of. his title. The deed and mortgage were returned by the title company with a letter calling attention to the fact that the east acre of lot 8 had been sold, and that the description in the plaintiff’s deed and the defendant’s mortgage back should except from the description of lot 8 the acre so sold from said lot 8. The eastern boundary of the land of the plaintiffs was marked by a fence which was to the west of the easterly acre theretofore sold. The fence was pointed out by the plaintiff N. McCombs as his boundary line. His property was planted in oranges. The property to the east was not. The defendant actually received the property pointed out by the plaintiff N. McCombs with the boundaries indicated by him.