Marshall v. Caldwell , 41 Cal. 611 ( 1871 )

By the Court, Rhodes, C. J.:

The plaintiff sues in ejectment, and relies for a recovery on his legal title. The defendant Forrest, the vendee of Caldwell, sets up in his cross complaint a contract made between the plaintiff and Caldwell, by which the plaintiff sold to Caldwell the premises in controversy, and covenanted to convey the same to him upon the payment of the purchase money therein mentioned; and alleges that he entered into possession of the land under the contract; that the plaintiff falsely and fraudulently represented that he owned the whole land; but that in truth he owned only the undivided half of it; that he offered to accept a deed from plaintiff of so much of the land as the plaintiff was the owner of, and to pay the plaintiff therefor a proportionate part of the purchase money; and-he prays for a specific performance of the agreement as to the undivided half of the land.

The contract, as already remarked, shows that the plaintiff" sold the whole land, and not, as he now contends, only his interest in the land. True, he could not convey any greater interest in the land than he held, but the contract recites a sale of the entire title. The covenants which, by the terms of the contract, are to be inserted in the deed, do not limit the extent of the interest attempted to be sold, for upon a sale in fact of the entire title, the vendor may restrict the covenants, whether express or implied, in such manner as the parties may agree. Uor indeed will the plaintiff" be permitted to aver, in the face of the agreement, that he sold less than the whole title to the land, unless he can also aver that the written contract, by reason of fraud, mistake, or the like, does not show the real contract.

Upon the discovery hy the vendee, that the plaintiff held only the undivided half of the land, he was entitled to proceed at once to rescind the contract; but he was not obliged to adopt that course. He was entitled- to proceed, as he has done in .this case, to have the contract specifically enforced to the extent of the plaintiff’s interest in the land. The discussion, therefore, of the rules of law which may be applicable, when the vendee elects to rescind the contract on account of the fraudulent representations of the vendor, are immaterial, for the vendee elects, not to rescind, but to affirm the contract, so far as the plaintiff is able to perform it.

It does not expressly appear, that at the time of the sale, the plaintiff had the possession of the land, but as Caldwell acquired the possession under the contract, it may be assumed, as both parties seem to concede, that the plaintiff then held the possession. Whatever possession he may have had, and whatever may have been the source of his right of possession, it is clear that such right passed to the vendee by virtue of the sale. In proceeding to specifically enforce the contract, it is clear that it is not incumbent on the defendant to restore or offer to restore the possession to the plaintiff. In such case it is equally clear that the plaintiff is not entitled to any portion of the rents and profits accruing since the contract was- made, for the reason that he was not, and is not now, entitled to the possession of the premises if the defendant is entitled to a specific performance of the contract. That is the only remaining question.

The cross complaint of defendant Forrest is sufficient to entitle him to a judgment for a specific performance of the agreement, and in this respect it is sustained by the findings. The plaintiff' does not controvert the position—and there is no doubt of its soundness—that if he is unable to perform the entire agreement, and can convey only an undivided half of the land, he may be compelled to convey that interest. To entitle the defendant to that relief, it was necessary for him to pay or tender as the purchase money only one half of the contract price. The offer to pay that sum is alleged, and the finding is in accordance therewith. The possession which the plaintiff had will be referred, for its right, to his title to the undivided half of the land which he then held; and as the defendant is entitled to such possession, the plaintiff is neither entitled to be restored to the possession jointly with the defendant, nor to any separate compensation for such possession beyond the one half of the stipulated price for the whole land.

The question as to the correctness of the ruling of the Court, in permitting the defendant to amend his cross complaint in respect to the allegation of the fraudulent representation of the plaintiff as to his title to the land, need not be noticed; as in the view we have taken of the nature of the cross complaint, the amendment was immaterial.

Judgment affirmed.