Ferris v. Irving

By the Court,

Shafter, J. The complaint in this action is framed with a double aspect: first, as a bill filed under the two hundred and fifty-fourth section of the Practice Act to quiet a legal title already vested in the plaintiff; and second, as a proceeding to compel the specific performance of a contract to convey. The action is [647]not maintainable under the first aspect, for there is no allegation that the plaintiff was in possession of any of the lots in controversy at the time the suit was instituted; nor can it be maintained under its second aspect, for it does not appear by the findings that any contract to convey the particular lots named in the complaint was ever made by J. K. Irving with Valdez, the plaintiff’s assignor.

Should the complaint be considered as having a third aspect, viz: that of a bill giiia timet to clear off a cloud upon title, still the action cannot stand, for the reason that the plaintiff has no title, legal or equitable, to be clouded or endangered.

It appears by the findings that on the 17th of August, 1853, Joseph K. Irving, then in life, was seized of the lots in controversy, together with a large number of other lots, in the City of Oakland, and a tract lying outside of said city known as a part of the Peralta Rancho; and that he on that day, for a good and valuable consideration, executed and delivered to José M. Valdez a certain instrument in writing, whereby he agreed to convey to said Valdez fifty acres of said ranch, outside of said city, to be located where said Valdez should think proper. It further appears that the parties, thereafter in the early part of 1854, entered into a paroi agreement to exchange the fifty acres mentioned in said written contract for “ some city lots in the City of Oakland.” On the 16th of May, 1854, Irving executed a power of attorney to one William D. Fair, and before departing from the State he introduced Valdez to his said attorney and told him to make the exchange which Valdez and he had agreed upon. A few days thereafter Irving-left for the East, and died in' the City of Few York on the 28th of June, 1854. Two days thereafter Fair," as attorney in fact of Irving, executed a deed of conveyance to Valdez of the lots in controversy, and the latter released Irving from his covenant to. convey the outside lands. The defendants Hurlburt and McKenzie claim the city lots in dispute under an administrator’s sale and deed.