Martin v. Hill

ROSS, J. Each of the parties to the agreement we are called upon to construe in this case was, at the time of its execution, in possession of a distinct portion of the Bo jorques rancho, for the partition of which rancho an action of partition, entitled Gates v. Salmon et al., was then pending in one of the district courts of the state. Some of the parties to the agreement were holding under deeds from tenants in common of the rancho, purporting to convey the distinct par[404]cels so possessed, and others of them were holding under deeds from tenants in common of the rancho, purporting to convey an undivided interest therein. The purpose of the-agreement in question was to secure to the respective parties to it the portions of the rancho of which they were respectively in possession; and, lest it should turn out in the partition that their respective interests should not be sufficient to cover their respective possessions, it was determined to purchase, in the name of certain trustees, other and sufficient undivided interests in the rancho to carry out the wishes of the parties. The money required for such purchases was to be contributed by the parties to the agreement in proportion to the number of acres and value of the land included within their respective possessions. All is embodied in the agreement, as we read it. Omitting some of its contents not necessary to be stated, the agreement then proceeds:

“And it is further agreed that the title so acquired shall be used for and devoted to the purpose of quieting title to the said lands so in possession severally of the parties hereto, and for this purpose, and for all purposes under this agreement, it is stipulated that the parties hereto, known as claimants by ‘special location,’ shall be deemed and admitted to be, respectively, the owners in fee simple of the tracts of land described in their respective deeds under said special location, and that, for any lands in their possession not included within the lands described in their said deeds, they, and each of them, may purchase of the parties hereto, acting jointly as aforesaid, such title as may be requisite for their protection in and acquirement of title to the said lands, outside of the special locations or not included within said descriptions in the deeds, and the price to be paid therefor shall be at the rate per acre that the title by them so bought has cost in the original purchase of undivided interests in the whole rancho—the number of acres pertaining to the undivided interests so bought to be ascertained from the report of the commissioners in partition, without reduction by reason of special locations. And the parties claiming as tenants in common shall also have the privilege of buying in the same manner and at the same price as last above provided, whatever number of acres they may have in possession in excess of their present undivided interest in said rancho, as shown