Montgomery v. Harrington

Citations

• 58 Cal. 270

Syllabus

<p>Pendency oe Former Action—Contract—Condition Precedent—Vendor and Vendee.—H., having purchased lands from the United States at private entry, with money furnished hy M., under an agreement that the two should bear equally the expenses and be equally interested in the land, conveyed the lands to M., and at the same time a contract was executed, hy which M. agreed to reconvey to H. an undivided half of the land, upon the repayment by the latter of one half of the purchase money and expenses—which amount H. agreed to pay on or before the expiration of two years from date; but afterwards the certificates of purchase of the lands were canceled by the Commissioner of the Laud Office. After the expiration of the time for payment, M. brought an action against H. to recover the amount due under this contract, and afterwards—the first action still pending—brought this action for the same purpose—-the complaint containing the allegation (in addition to the allegations of the former complaint), that the plaintiff had—subsequently to the commencement of that action—tendered to the defendant the deed of reconveyance provided for in the contract.</p> <p>Held, That the allegation in respect to the tender of a deed was wholly immaterial, and that the defendant was entitled to judgment upon his plea of a former suit pending.</p>