Tewksbury v. O'Connell

Citations

• 21 Cal. 60

Syllabus

<p>A contract, purporting to be made between several parlies, containing mutual covenants of which those of one party are the consideration of those of the others must, to be valid, be executed by all, and cannot be enforced against one executing, by another who fails to execute.</p> <p>Thus, where a number of tenants in common were parties to a deed of partition, by the terms of which each party conveyed and released his undivided interest in the whole premises in consideration of the conveyance to him of the undivided interests of the others in a specified portion, and the deed was signed by a large proportion of the parties, but not by all: Held, that as a conveyance it was void as to those who did sign, and that they still retained their interests as tenants in common in the whole tract.</p> <p>AVliere a deed of partition is invalid as a conveyance, by reason of its non-execution by some of those who are parties to it, it may become effectual by the parties taking and holding in severalty in pursuance of its terms and dealing with their respective portions as if owned in severalty, but such acts of ratification do not operate to make the deed a valid conveyance, but only by way of estoppel or as a determination of boundaries and only upon the interests of those performing them. A party who signed the deed is not estopped from insisting upon its invalidity by reason of any acts of ratification either of the others who did execute or of those who failed to execute.</p>