Marshall v. Caldwell

Citations

• 41 Cal. 611
• 1871 Cal. LEXIS 142

Syllabus

<p>Construction of Written Contract—Sale of Land.—Where a party who owns hut an undivided one half of a tract of land enters into a contract by which he agrees that, upon the payment of the purchase money, lie will convey the whole of the land to another party, who is induced to regard him as the owner of the entire premises, the vendor is deemed to have sold not only his own interest in the land, but the whole of the land.</p> <p>Idem—Allegation in Complaint.—In the face of such an agreement, the vendor will not be permitted to aver, if he brings an action to recover possession from the party holding under the contract, 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.</p> <p>Bight to Bescind—Specific Performance.—In the case stated, upon a discovery by the vendee that the plaintiff held only the undivided half of the land, he is entitled to proceed at once to rescind the contract; or he may proceed to have the contract specifically enforced to the extent of the plaintiff’s interest in the land.</p> <p>Bestoration of Possession—Bents and Profits.—In proceeding to specifically enforce the contract, it is not incumbent on the defendant to restore, or offer to restore, the possession to the plaintiff; nor is the plaintiff entitled to any portion of the rents and profits accruing since the contract was made.</p> <p>Obligation of Vendor to Convey.—If the vendor in such a case 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.</p> <p>Obligation of Vendee to Tender Payment.—To entitle the vendee in the case stated to a decree compelling the vendor to convey his undivided half of the land: 7teld, that it was necessary for him to tender as the purchase money only one half of the contract price.</p>