Pacific Mutual Life Insurance v. Stroup

McKee, J. This was an action in ejectment. The demanded premises are a portion of the southwest quarter of section sixteen, township ten, range eight east, of Mount Diablo meridian, for which and other parcels of real property the State of California, on the 22d of April, 1867, issued a patent to B. N. Bugbey. For several years before this patent was issued Bugbey and the defendant Stroup, adversely to each other, occupied separate portions of the quarter section, a picket fence constituting the division line between their claims. And, being in [151]possession, on the 24th of July, 1866, they made and entered into the following agreement in writing:—

“ Whereas the said B. hi. Bugbey seeks to obtain a title from the State of California to that tract of land described as follows, to wit: The southwest quarter of section sixteen, township ten, range eight east, Mount Diablo meridian; now then, the said B. N. Bugbey undertakes and agrees, as soon as he shall acquire a title to said land from the State, to make and execute to said Stroup a good and sufficient deed to all of that portion of said quarter section lying on the north side of a certain picket fence, now used and known as a line fence between the said Bugbey and Stroup on the northerly side of an exact range of said fence from _ the west line or west boundary of said quarter section to the east line or boundary of said quarter section, at the same price per acre and on the same terms that said Bugbey shall have paid to the State of California for said lands; and the said L. T. Stroup covenants and agrees that he will, in like manner, convey to said Bugbey all of that portion of the northwest quarter of said section sixteen being south or on the southerly side of said fence and range above described, on the same terms as provided above touching the conveyance of the said Bugbey; and it is hereby further agreed that the refusal of one to comply with this agreement that does [not] release the other; but each may be proceeded against, and compelled by law to make good this contract.”

The agreement was not recorded, and on the 8th of June, 1870, Bugbey conveyed the land to the plaintiff by a deed, absolute on its face, which was intended as a mortgage to secure payment of a sum of money which Bugbey owed to the plaintiff. The deed was recorded on the day of its execution, and subsequently, the plaintiff by foreclosure proceedings, to which the defendant was not made a party, obtained a judgment and order of sale against Bugbey, under which the land was sold as a portion of the mortgaged premises to the plaintiff, to whom, on November 14, 1877, the sheriff conveyed it by deed, which purported to convey all the interest which Bugbey had in the land at the date of the judgment and decree of foreclosure. But on the 30th of May, 1874, Bugbey,' in fulfillment of his agreement of 1866, had conveyed the land to the defendant. The deed was