Rogers v. Borchard

Sharpstein, J. The plaintiff and defendant entered into a written agreement, wherein the defendant agreed to sell and convey to plaintiff lands in Ventura County, and upon certain payments being made, to execute and [349]deliver to plaintiff a good and sufficient deed of bargain and sale of the premises, free and clear of all encumbrances. The plaintiff was to, and did, pay defendant twelve hundred dollars at the time the agreement was entered into, but made no other payment, claiming, among other things, that defendant did not have title to a large portion of the land. Plaintiff brought this action to recover the twelve hundred dollars paid to defendant as above stated;

On the trial, plaintiff introduced in evidence the agreement set forth in the complaint, in which, for the consideration mentioned therein, the defendant promised to execute and deliver to plaintiff “a good and sufficient deed of bargain and sale to said property, free and clear of all encumbrances.” To prove that he had executed such a deed, the defendant offered in evidence a deed which purported to grant, bargain, and sell and convey unto the plaintiff, and to his heirs and assigns forever, all the right, title, and interest of the defendant in and to certain tracts and parcels of land therein described.

Plaintiff objected to its introduction, on the ground that it is not such a deed as the agreement called for,— 1. Because it is not a grant, bargain, and sale deed; 2. Because it does not purport to convey the land described in the complaint, or any part thereof, or interest therein, except such as the defendant had at the time of the execution of the deed; that it is a quitclaim deed; 3. Because the land described in it is not the same land described in the complaint. Objection overruled, and plaintiff excepted.

The principal question being, Did the defendant comply with bis agreement? any evidence that shows, or tends to show, that he did was admissible.

He agreed to execute and deliever to plaintiff a good and sufficient deed of bargain and sale to the premises, conveying the same free and clear of all encumbrances.

To prove a compliance with that agreement, a deed [350]