Bensley v. Atwill

Baldwin, J., delivered the opinion of the Court—Terry, C. J., concurring.

Action upon contract, dated twentieth July, 1853. Atwill conveyed to Bensley a lot in San Francisco for the sum of $6,000. A part was paid down, and Bensley’s note taken for the balance, payable in three years after date. Atwill agreed to pay back the $2,000, and deliver up the note to be canceled in the event that Bensley should be dispossessed by legal judgment at any time during three years ensuing the date of the contract, provided that Bensley should vigilantly defend any suit that might be brought against him during the period of three years for the possession of the lot. Bensley agreed to pay the taxes on the lot; that he would not encumber it; that he would defray all law expenses; and that should a suit be brought against him, he would duly notify Atwill thereof, and that he would not convey the lot without the written consent of Atwill.

Issues of fact having been joined on the complaint and answer, it was specially referred to the jury to find upon the following questions:

1. Did Bensley vigilantly defend the action brought against him by one Lick, who sued, within the three years, for the recovery of the lot ?

2. Did he give reasonable notice to Atwill of the pending of the suit ?

3. Did Bensley convey the lot to his brother, Samuel Bénsley, during the three years ? 4. Was the plaintiff judicially dispossessed on the twentieth July, 1856 ?

The first question being, in effect, as it was treated, a question of [236]law, and passed upon in his (appellant’s) favor, it is not necessary to notice it further.

On the second and third issues there was evidence, and instructions were given and refused by the Court, which are the subjects of review by us.

The first error assigned in this connection is the refusal of the Court to charge, at the instance of the plaintiff, “ that assuming the facts which the evidence tended to prove, there was no delivery of the deed executed by the plaintiffs to Samuel Bensley, the grantee.”

It is argued by the appellant that there was no conflict of proof on this point, and therefore the Court should have given this charge as the legal result of the facts. This deed purports to be a deed of bargain and sale on an alleged consideration, executed and acknowledged by the defendant, and on the same day recorded. This certainly is some evidence that the deed was perfected, and that it was intended to vest the title in the grantee. He might, if ignorant of its execution at the time, have, at any time, assented to it. It is scarcely to be presumed that one man will execute to another a deed without the assent of that other. Mr. Brooks, the witness, does not say that the grantor had no knowledge of the execution of this deed. We think the facts should have gone to the jury, for them to say whether the grantee had this knowledge, or had given, directly or otherwise, his assent; and that the Court did not err, on the facts stated by the witness, in refusing to rule that the deed was never delivered. Perhaps it would be too much, in any case where the testimony of a witness contradicts the written acknowledgment of a party introducing him, (as in this case, that a deed was delivered) and also the fair presumption from the nature of the transaction, for the Court to assume that the testimony of the witness is the fact, and to give effect to it as a legal conclusion. In this case the plaintiff admitted, by the execution of the deed and his acknowledgment of it for record, that he delivered it. The mere fact that the plaintiff was absent from the State, and that the deed was made at the instance of the grantor, or of the witness, is not conclusive evidence of its non-delivery.