Ellis v. Jeans

Citations

• 7 Cal. 409

Syllabus

<p>An instrument setting forth that A “has this day sold” a piece of land to B, for a sum of money then paid, and a further consideration agreed to be paid; and further providing that, on payment of said further agreed consideration, the said A “ binds himself, his heirs, etc., to make a general warranty-deed of said land free and clear from all persons claiming through or under himHeld, to be an executory contract for a deed, and not a present conveyance.</p> <p>Although the word “ sold” is used, it must be construed with the whole of the instrument to ascertain the intention of the parties. If the parties had considered it a present conveyance, they would hardly have omitted all express words defining the kind of estate intended to be conveyed, whether for years, for life, or in fee simple.</p> <p>The grantor’s relation to the land, in such a case, is an equitable lien upon the purchase-money, holding the legal title as security for the enforcement of the lien.</p> <p>The possession of the grantor is that of a purchaser, which could be only terminated either by legal .proceedings to enforce the lien, or by sale to an innocent purchaser; and such possession, if maintained, would be sufficient notice to put a subsequent purchaser upon inquiry.</p> <p>Where the plaintiff and defendant both derive title to land from the same person, the plaintiff is estopped, by his purchase, from denying the title of their common grantor for the purpose of establishing a title in himself by virtue of location of the land under school-land warrants.</p> <p>And where the plaintiff only proved conveyances from the common grantor, the objection that he established no title in the grantor is cured, if the defendant sets up in defence his own conveyance from the same person, he being then estopped from denying such title.</p> <p>In ejectment, one, or many defendants maybe sued, and they may answer separately, or demand separate verdicts; if they do not, they will be concluded by a general