Fenton v. Alsip (1889) · DecisionDepot

Fenton v. Alsip

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jun 1, 1889 No. No. 12615Published

Before: Works

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Holding. A plaintiff is not required to tender a reconveyance of property before suing to recover purchase money when the deed received was for different property than that purchased and was never effectively accepted.

Issues

Whether a plaintiff must tender a reconveyance of property before suing for the return of purchase money when the deed received did not cover the property purchased.

Disposition. reversed

Quotations verified verbatim against the opinion

“This was not a delivery of a deed for the property the plaintiff had purchased, and vested no title in him.”

“It was not necessary, therefore, that he should have tendered a conveyance of the property before bringing this action.”

Synopsis

Vendor and Purchaser—Deed—Delivery—Passing Title — Recovery Back oe Purchase-money—Tender of Reconveyance.— When a deed of property given by a vendor describes town lots in a different block from those purchased by the vendee, and upon discovery of that fact, the vendee declines to go on with the trade, and does not take the deed, the fact that it had been actually placed in his hands does not constitute delivery of a deed for the property purchased, and the deed vested no title in the purchaser. He is not therefore bound to tender a reconveyance of the lots described in the deed before suing to recover the purchase-money paid for the property purchased to which no title was received from the vendor.

Works, J. —This is an action to recover money paid as a part of the purchase-money for real estate for which the plaintiff claims he got no title.

There was a nonsuit granted by the court below on the ground that the plaintiff had received a deed for the property, and the title having vested in him, he must tender a reconveyance of the property before he could recover back the money paid by him. But the evidence [404]shows beyond any question that the property deeded to the plaintiff was not the property purchased by him, but of lots in a different block, and that immediately upon discovering the fact, he declined to go further with the trade and did not take the deed, although it had actually been placed in his hands. This was not a delivery of a deed for the property the plaintiff had purchased, and vested no title in him. It was not necessary, therefore, that he should have tendered a conveyance of the property before bringing this action.

Judgment reversed.

McFarland, J., Sharpstein, J., Thornton, J., and Paterson, J., concurred.

Fenton v. Alsip

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