Dalton v. Hamilton

By the Court ; The purpose of the complaint is to obtain a decree that the title, which the defendant Hamilton originally obtained by the deed of Anna Morales and her husband, be conveyed to and vested in the plaintiff.

1. As to an undivided two-thirds of the premises claimed under the deed of May 10, 1871, it is apparent that no ground for equitable relief is disclosed in the complaint, because it is there alleged that the defendant Hamilton, on that day, delivered to the plaintiff a deed “whereby he bar- ' gained, sold, and conveyed to the plaintiff * * * one undivided two-thirds of the said rancho. ” The operation of such a deed would be to vest in the plaintiff all the in[425]terest which the defendant Hamilton, the grantor therein, subsequently acquired by the deed of Anna Morales, delivered to him on the 27th day of May, 1871, and the plaintiff, in this aspect of the case, does not need the aid of a court of equity, but may recover the premises in an action of ejectment.

2. Nor do we discover any ground stated in the complaint upon which the plaintiff can maintain his claim, that the defendant Hamilton should convey to him the other undivided one-third of the premises. Assuming the fact to be as the plaintiff states it, that the defendant Hamilton has ignored the supposed rights of the plaintiff, and set up an adverse title to the whole of the premises, and conceding, too, that so long as the rights of Hamilton rested in executory agreement merely, those rights might have been lost by his repudiation of the contract under which they are alleged to have been held, it is plain that when, as here, the title of Hamilton to the undivided third is a legal title, vested in him by proper deed, such acts done on his part against the plaintiff would not entitle the latter to divest him of the title, or demand that it be surrendered to the plaintiff.

Judgment and order affirmed.