Phillips v. Day

Works, J. The facts of this case, and the questions presented and tried in the court below, are thus stated in the opinion of the learned judge of the court below, which is set out in the transcript:—

“In this case the plaintiff and defendant, on the thirty-first day of August, 1887, entered into a contract in writing, by which defendant bound himself to sell to plaintiff, and plaintiff bound himself to purchase, a tract of land known as the John Fulkerson place, for the sum of eight thousand dollars; 'five hundred dollars to bind bargain, and two thousand dollars at expiration of sixty days, the balance in one or two years,’ secured by note and mortgage on the property. Upon the making of the contract, the plaintiff paid to the defendant the sum of five hundred dollars, and on the twentieth day of September thereafter paid the further sum of seven hundred dollars. An abstract of the title was furnished to the plaintiff, and upon submitting the same to his attorney, plaintiff declined to perform his part of the contract, on the ground that defendant could not give him a perfect title, and after such refusal, commenced this suit to recover the money which he had paid. Defendant answers, and by way of cross-complaint insists on plaintiff specifically performing his contract.

“It appears, from the evidence, that the land bargained for is a part of a larger tract, once the property of Richard Fulkerson, who got title from the grantee of a Mexican grant. The property was fenced and cultivated by Fulkerson for more than thirty years. He conveyed it to James B. Armstrong, and put him in possession. Armstrong laid it off into streets, blocks, and lots. The streets were marked on the ground, and the one on which the land [27]bargained for is situated was graded and graveled, but the fence inclosing it with the rest of the larger tract was never removed by James B. Am strong or Walter Armstrong, his successor in interest. Where this graveled street intersects the public highway leading from Santa Rosa to licaldsburg a gate was put in, but kept closed, and the inclosure, by means of the gates and fences, was maintained. No opening of any kind was made where the street north of the property in question intersects the highway. There were two gates on two other streets. James B. Armstrong, while he was owner, sold three of the lots, but none of them on the graded and graveled street. He afterward sold and conveyed the balance of the tract to Walter Armstrong, who conveyed several of the lots; four, at least, of them being on the gravel street. After these conveyances were made, Walter Armstrong filed in the office of the county recorder a map or plat of the tract, which was called Norwood, showing streets, blocks, and lots, and on the same day conveyed all of the tract which he had not sold, to Richard Fulkerson. The conveyances from James B. Armstrong to Walter Armstrong, and from Walter Armstrong to Richard Fulkerson, recognized the map, but include the streets; the latter conveyance was filed for record about two hours after the filing of the map. A. W. Riley, who purchased from Walter Armstrong, went into possession, and erected a fence on the south line of the graveled street. It does not appear how many of the other purchasers from the Armstrongs went into possession, or to what extent they used the streets. John Fulkerson testified that some of them went into possession, and used the streets to get to their lots.