Nicholson v. Tarpey
Before: Temple
Synopsis
Specific Performance—.Conveyance of Portion of Premises Sold — Retention of Contract by Grantor—Reformation of Deed.— An action by a grantee for the specific performance of a written contract for the conveyance of real estate, alleged to have been retained by the grantor of the land when he executed a deed for a portion of the premises described in the contract, which he had induced the plaintiff to accept as conveying the whole land contracted for, is, in effect, an action to reform the deed.
Id.—Evidence — Negotiations Preceding Contract.—In such action, evidence as to the negotiations and conversations preceding the execution of the written contract is inadmissible.
Depositions, Exceptions to.—Depositions are taken subject to all legal exceptions, except as to the form of the interrogatory; and when read upon a retrial of an action, the parties are at liberty to interpose new objections.
Id.—Lost Writing — Terms of Contract — Intention of Parties.— The rights of the parties to a written contract must he ascertained from its terms; and whether the writing be lost or not, evidence of the intention of the parties in making it is inadmissible, in the absence of fraud or mistake.
Temple, C. — This is the defendant’s second appeal. (70 Cal. 608.) It is from the judgment, and an order [619]refusing them, a new trial upon a bill of exceptions, wherein are stated certain rulings admitting evidence against the defendants, claimed to be erroneous.
The action is for the specific performance of a contract alleged to have been made in writing by Mathew Tarpey, the ancestor of the defendants. It is charged that Tarpey induced plaintiff, by fraudulent representations, to accept a deed for a portion of the premises, under the belief that it conveyed the whole. This action is, in effect, to reform the deed.
Defendants admit a parol contract for the premises conveyed by Tarpey, and deny that any other contract was made. The plaintiff claimed that the contract was executed in duplicate, each party retaining one, and that his copy was surrendered to Tarpey and destroyed when he received the deed.
The issue tried was, whether there was a written contract, and if so, as to its contents.
The alleged contract was in May, 1867. The deed was delivered and received as performance in October, 1868. Plaintiff'built a house and went upon the land to live in 1871, and claims to have had possession of the whole tract ever since. The tract comprised about four hundred acres, was evidently, much of it, unsuitable for cultivation, and was not inclosed. It does not appear whether there was any improvement or cultivation upon the part now in dispute. Mathew Tarpey died in 1873. The line between the part agreed to be conveyed and that retained was not fenced until 1879, — shortly before the commencement of this litigation.
The testimony objected to is the same deposition, some objections to which were considered on the last appeal, and respondent claims that that decision has become the law of the case.
To this it is sufficient to reply that the objections are not the same. Depositions are taken subject to all legal exceptions, except as to the form of the interrogatory, [620]and when road on the retrial, parties were at liberty to interpose new objections.
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