West v. Masson

McKee, J. On the 13th of May, 1877, the defendants, Francis P. and Victor B. Masson, sold, and by a deed of grant, ■ bargain, and sale, conveyed to the plaintiff, Louis West, a tract. [170]of land in Alameda County. Additional to the covenant implied from the terms “grant, bargain, and sale,” the deed contained a covenant on the part of the grantors “to warrant and defend the premises against all persons lawfully claiming the same by, through, or under them, or either of them.” When West acquired title from the defendants he was in possession of a small portion of the tract, as tenant of one William Schuman, from whom the defendants derived title, subject to the lease to West, and Schuman occupied the balance of the land. West knew when he purchased from the defendants, and before paying the purchase money and receiving his deed,- that Schuman was in possession, nominally as a tenant at will of the Massons, but claiming that the deed by which he had transferred the title to them, though absolute in form, was intended as a mortgage - to secure payment of a certain mortgage on the land in favor of the Massons; and for the foreclosure of which there was at the time of the execution of the deed by Schuman to them an action pending in their favor against Schuman, West, and others. Under these circumstances West purchased from the defendants and received and had recorded his deed.

- Soon after the deed to West was recorded, Schuman tendered to the Massons money to redeem the land from what he claimed to be a mortgage to them, and demanded a reconveyance of the premises. They refused to accept the tender or to comply with the demand. A suit in equity was thereupon commenced by Schuman against the Massons and West, their grantee, to have the deed to the former declared a mortgage, and to compel the defendants- in-the action to reconvey the premises upon payment of what was due. West notified his co-defendants in the action to defend the suit, but they refused, and he had to defend it at his own expense, and afterward, at his own cost and expense, had to commence and prosecute an action of ejectment against Schuman to recover possession of. the land. In both actions he was successful, and the object of the action in hand is to recover from the defendants the money expended by him in recovering from Schuman possession of the land which he purchased from them. For this, he contends, they are liable upon the covenants in the deed. But we think there was no breach of either the express or implied covenant in the deed to the plaintiff.

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