Montgomery v. Harrington
Before: Sharpstein
Synopsis
Pendency oe Former Action—Contract—Condition Precedent—Vendor and Vendee.—H., having purchased lands from the United States at private entry, with money furnished hy M., under an agreement that the two should bear equally the expenses and be equally interested in the land, conveyed the lands to M., and at the same time a contract was executed, hy which M. agreed to reconvey to H. an undivided half of the land, upon the repayment by the latter of one half of the purchase money and expenses—which amount H. agreed to pay on or before the expiration of two years from date; but afterwards the certificates of purchase of the lands were canceled by the Commissioner of the Laud Office. After the expiration of the time for payment, M. brought an action against H. to recover the amount due under this contract, and afterwards—the first action still pending—brought this action for the same purpose—-the complaint containing the allegation (in addition to the allegations of the former complaint), that the plaintiff had—subsequently to the commencement of that action—tendered to the defendant the deed of reconveyance provided for in the contract.
Held, That the allegation in respect to the tender of a deed was wholly immaterial, and that the defendant was entitled to judgment upon his plea of a former suit pending.
Sharpstein, J. If the delivery or tender of a deed by the plaintiff to the defendant of land to which the plaintiff had no right, title, or claim, either in law or equity, was not a condition precedent to his right to maintain this action, the pendency of another suit between the same parties for the same cause of action was well pleaded and proven by the defendant. If the plaintiff’s right of action had depended upon his delivery or tender to the defendant of a deed of the land described in the complaint, the fact of the plaintiff’s having no right, title, dr claim to the land either in law or equity would have rendered such delivery or tender wholly ineffectual. A deed in form which conveyed no title or interest whatever in the land was utterly void, and of less value than a sheet of blank paper. The allegation therefore in respect to the delivery or tender of a deed was wholly immaterial, and being so the complaint in the latter action is essentially the same as that in the former action. If the evidence is sufficient to support the judgment in the present action, it would have authorized a judgment for the plaintiff in the former action; and that is the test for determining whether the cause of action is the same in both cases. (Taylor v. Castle, 42 Cal. 367.)
The defendant was entitled to a judgment in his favor upon his plea of a former suit pending for the same cause of action.
Judgment and order, reversed.
Ross, J., McKinstry, J., Thornton, J., and Morrison, C. J., concurred.
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