Vance v. Lincoln

Sanderson, J. delivered the opinion of the Court: This is an action of ejectment against several persons who were separately in possession of certain parcels of the land in controversy. As to some of the defendants the plaintiff obtained a judgment, and as to the remainder, the judgment went against him. From the judgment against him the plaintiff has appealed to this Court.

The facts are as follows: Prior to the 1st of March, 1862, the plaintiff claimed and held the same title to the land in controversy upon which he now relies for a recovery. On that day he executed and delivered to one French a deed of bargain and sale, absolute upon its face. On the same day, and as part of the same transaction, French executed and delivered to the plaintiff an instrument in wri'ong, in which he stated that the land had been deeded to him as security [588]for-the payment of a promissory note for $18,241 82, dated the 1st of February, 1862. The instrument then continued in the following words: “ It is further understood that the

said French agrees to endorse on said note, from time to time, moneys received by him for sales made of said land; and it is further agreed, that as soon as the said note is paid, either from the sales of land, or in any other way, so that the said French receives the amount of his note and interest, he binds himself, his heirs, executors and administrators, to re-deed to said Vance all of the lands first deeded to said French, by deed of March 1, 1862, excepting such land as may have been sold by said French, and the proceeds of said sales applied to the said Vance note.”

At the date of this transaction the plaintiff and French were both residents of this State. In 1863 French removed to the State of New York, and was a resident of that State in November, 1866, at which time an action for the possession of the land in controversy was commenced in his name against these respondents in the Circuit Court of the United States, in and for the Northern District of California. The attorney who commenced the action was requested to do so by this plaintiff (Vance), who paid him $100 to meet costs and expenses of the suit; but he was also the attorney in fact of French. At the trial of said action the title of French, under the deed from the plaintiff, was put in issue and tried, and the plaintiff was present and testified as a witness. The verdict and judgment were against French, and in favor of these respondents. After the determination of that action, and before the commencement of this, French conveyed by quitclaim to Vance, the plaintiff in this action.