Riddell v. Blake

Appeal from the Seventh Judicial District.

This was an action brought by the plaintiff Riddell, against the defendants, Blake, to recover $2,425, being the principal and interest of a promissory note given by them on the purchase of a tract of land from the plaintiff, situated in the County of Solano, made January 28th, 1853, and payable September 20th, 1853. In answer to the complaint, defendants alleged that simultaneously with the execution of the promissory note, the plaintiff executed and delivered to them a bond stipulating and agreeing, in consideration thereof, ánd the payment of said note, at the request of defendants, to execute and deliver to them a good and sufficient deed in fee simple, conveying to them the said tract of land; that on the 20th September, 1853, they tendered the plaintiff the amount of the note and interest, and demanded a deed for the land, according to the stipulations of the bond; “that the plaintiff refused, upon the request of the defendants, nor could he make a good title to the said defendants, their heirs and assigns, to the said tract of land, according to the tenor and effect of the said bond or writing obligatory;” that, in consequence thereof, the consideration of the said promissory note has wholly failed, and that the same is void and of no effect, etc.

On the trial, the evidence was as follows: The plaintiff having given the note in evidence, the defendants gave the bond in evidence, and then proved by witnesses that, on the day the note became due, the attorney of the defendants called on the plaintiff, tendered the amount due, and demanded a clear and perfect title. The plaintiff offered to give such a deed as he was required to give' by his contract. The defendants’ attorney then ashed the plaintiff for evidence of his * title to the land, and demanded [265] from the plaintiff a patent from the U. S. Government, and ashed the plaintiff if he had such a patent. The plaintiff replied that he had not, but was willing and prepared to mahe a deed for the land, according to the conditions of his bond, and offered to mahe such a deed, and referred the defendants’ attorney to his own attorney. On the next day, plaintiff’s attorney tendered to the defendants’ attorney a deed, regularly acknowledged, for the land, with full covenants and warranty, and a few days afterwards, tendered the same deed to the defendants’ attorney, and afterwards to the defendants, on the premises, and demanded payment of the money, which was refused. It also appeared that, at the date of the note and bond, the defendants were living on the land, and had been cultivating seventy or eighty acres of it; that other persons had the' balance inclosed and in cultivation, in plain view of the defendants’ residence.

There was no evidence showing in what right these parties were occupying, or that their occupation was adverse to the plaintiff.