Hitchcock v. Page

Baldwin, J. delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.

The plaintiff, Respondent here, filed his bill to assert a trust in respect to a certain piece of land in San Francisco. It is not very easy to make an intelligible statement of the facts without a map to indicate the precise subject of dispute. The defendant filed a demurrer to the bill, which was overruled, and the defendant declining to answer further, a final decree was rendered for the plaintiff.

The bill sets forth that, on the 6th of September, 1852, one Thomas O. Larkin, then owner of a large tract, leased part of it— a piece marked “A” on the map—to one Williams for five years, with a clause allowing Williams to purchase at the end of the term. On the 1st January, 1853, Larkin leased to Williams, also for five years, the adjoining land, with a like covenant. On the 31st January, 1853, Williams conveys to Yan Yoorhies two-fifths of apart of the land contained in such lease; and, on the-same day, conveyed to one Baum one-fifth of the same piece.. On the 21st December, 1853, Williams, Yan Yoorhies, and Baum,, [442]unite in conveying to plaintiff a part of the land included in Larkin’s lease of the lsi January, 1853, which part is that sued for in this action. On the 23d October, 1854, before the expiration of either lease, Larkin, for valuable considerations, in accordance with the intent, meaning, and understanding, of his said two leases in that behalf, and of the parties thereto, conveyed the reversion of a part of the land covered by each lease, and embracing the locus, to Williams; and Williams, on the 7th of June, 1855, conveys the same land to defendant, Page. On the 8th June, 1854, plaintiff leases to Williams, for five years, from July 1st, 1855, the locus, together with other land of plaintiff, adjoining. On the 7th of June, 1855, Williams assigns the lease to the defendant, and defendant paid rent to plaintiff. May 24th, 1858, and after'Larkin’s lease of the 1st January, 1853, had expired, defendant took the deed from Williams, with full knowledge of all these deeds and interests. On the 1st January, 1858, plaintiff gave notice to the defendant of his wish and readiness to purchase the lot. The notice was given in pursuance and in order to secure the benefit of a provision in the lease from Larkin to Williams, being the first paper noticed in this statement. That provision is as follows: “And the said lessor hereby agrees that the said lessee may have the privilege of purchasing said premises at the expiration of said five years at a price to be fixed by arbitration, in case the parties cannot agree, in the following manner: Each party shall choose one disinterested person as an appraiser, and these two shall appraise the said lot; and in the event of a difference of opinion between them as to the value of the same, then they shall call in a third disinterested person, and a decision of a majority of the three shall be final; or the said lessor shall buy said brick building, the price to be fixed in the same manner as the value of the ground.”