Vance v. Peña

By the Court, Rhodes, C. J.: The complaint states, that in 1853, Peña, the father of the defendants, conveyed to Vance a tract of land which formed a portion of a rancho which had been granted to Vaca and Peña. The tract conveyed is situated southerly of Alamo Creek, but there is excepted therefrom all lands which had theretofore been conveyed by Vaca and Peña. The deed contained a covenant of warranty, and also a further covenant, in the words following:

“AndI, the said Peña, do hereby covenant and agree to and with the said Vance, and his heirs and assigns, that if any of the lands lying ort the southerly side of said creek have heretofore been conveyed by said Vaca and Peña to any person or persons except that portion thereof that one William Fore has purchased and occupies, or claims at the date hereof, that in that case the said Peña will hereafter convey any of such portions of such lands as shall be conveyed to him, unto the said Vance, or his heirs or assigns; and in case the said Peña shall not be able to procure a conveyance to himself of such portions of said lands lying on the southerly side of said creek which may have been con[691]veyed heretofore as aforesaid, then said Peña shall, and will, upon reasonable notice, convey unto said Vance, or his heirs or assigns, other lands in said County of Solano (of him said Peña), in quantity and quality of equal value to such lands as may have been conveyed, as aforesaid, on the southerly side of said creek, excepting, however, any lands now possessed by said Pore under claim of title.”

Before the execution of the deed to Vance, Peña had conveyed to Currey and Clark six hundred acres of the lands described in the deed to Vance. An action was brought by Vance, with the knowledge and approbation of Peña, to recover from the grantees of Currey and Clark the six hundred acres of land, and judgment was rendered against Vance; and in April, 1864, the judgment was affirmed by the Supreme Court. Vo portion of the six hundred acres was reconveyed to Peña, nor was any part of the same conveyed to Vance. In 1859, Peña owned seven thousand acres of land—part of the same rancho—and in that and the two following years he conveyed the same to the several defendants without any consideration, and for the purpose of preventing the application of the lands to the satisfaction of his covenant with Vance. The defendants took with notice of the deed to Currey and Clark, and the deed and covenants to Vance; and it is alleged that they hold the lands in trust for the performance of the covenant to Vance, and are bound to convey so much thereof as may be necessary for the full performance of the covenant. Other facts are stated in the complaint, but they are not material to a correct understanding of those grounds of demurrer which will be noticed.