Murray v. Green

Sharpstein, J. When this case was here on a former appeal, the court said: —

“ The nature and effect of the instrument executed by and between Mary Ann Roussel and husband and McLeran, has not been discussed by counsel, but they treat it as a deed of conveyance, and no objection is suggested as to the validity of any of the clauses of the instrument. One of those clauses prohibits McLeran from selling, conveying, or otherwise disposing of any of the lands without the written consent of Mary Ann Roussel. The deed of McLeran to Murray, made during the pendency of the action of MeLeran v. McNamara et al., having been made without the written consent of Mary Ann Roussel, is absolutely void as a conveyance of any interest acquired by McLeran under the first mentioned deed, if the above clause is valid.

“ The habendum clause recites that the premises are held, the undivided half for McLeran and the other half in trust for said Mary Ann, and another clause provides that if McLeran shall obtain the seizin or possession of any of the lands, such seizin and possession shall ipso facto operate to invest the said Mary Ann with the legal seizin', possession, and estate of, and in the undivided half thereof, at her election. It is unnecessary at this time to define the precise effect of each of those clauses, but it is sufficient to say that, if valid, they vested in said Mary Ann or her assigns, the legal title to the undivided half of the land in controversy, it being the land which McLeran recovered of Murray in the above mentioned action.

[365]“Pending that action Mary Ann Roussel and her husband and McLeran executed a deed purporting to convey this land to Moon, and he conveyed the same to Porter, the defendant’s lessor, who held the same at the commencement of this action. From these facts it results that Porter holds the entire title to the tract of land in controversy, or the undivided half thereof— that is to say, the entire title if the deed of McLeran to Murray is void because of the first mentioned clauses of the deed, or the title to the undivided half, if he can rely only on the last two mentioned clauses of the deed. The finding, therefore, to the effect that the plaintiff Murray is the owner in fee of the premises is contrary to the evidence.” (4 Pac. C. L. J. 215.)

The foregoing will be better understood, if it be stated that the deed of McLeran to Murray antedates that of McLeran and the Roussels to Moon, who conveyed to Porter, the lessor of the defendant. So that the case turns upon the construction of the deed of the Roussels to McLeran. If that vested in him any title to the premises or to any part thereof, his deed to plaintiff doubtless conveyed such title to the latter. But it was determined on the former appeal that the deed of McLeran did not convey any title to more than an undivided one half of said premises to the plaintiff; leaving it an open question whether it conveyed any title whatever. By the terms of the deed of the Roussels to McLeran they granted, bargained, and sold to said McLeran, his heirs and assigns, all the lands, tenements, and hereditaments of Mary Roussel situated in San Francisco, to have and to hold the undivided moiety thereof, to the proper use and behoof of him the said McLeran, his heirs and assigns, subject however to the provisions thereinafter inserted, as to the power and control of said McLeran over the said moiety so conveyed to his own use; and to hold the other undivided moiety in trust for the sole and separate use of the said Mary Ann Roussel and her heirs, “ in manner following, that is to say, in conjunction with the said parties of the first part, or the said Mary Ann Roussel and not otherwise, to demand, sue for, enter, take, and hold seizin and possession of the same.....Provided, however, that the said Thomas G. McLeran shall not have any power or authority to sell, convey, or in anywise to dispose of, charge, or encumber any part or portion of