Block

This is an appeal from a judgment in favor of plaintiff in an action to recover the purchase price of a certain parcel of land that defendant had agreed to convey to plaintiff, the latter claiming the title to be defective. The true construction of defendant’s contract of sale is the only question involved.

The findings disclose a situation substantially as follows : On September 11, 1913, plaintiff and defendant entered into a written contract whereby defendant agreed to sell and plaintiff agreed to buy a lot of land in Los Angeles County for the sum of six hundred dollars, payable in certain monthly installments. The agreement contains a clause as follows: “The first party [defendant] upon receiving payment of the full amount, . . . agrees to execute and deliver unto the party of the second part [plaintiff] a good and sufficient deed of grant conveying said land, and to deliver a good and sufficient certificate of title issued by the Title Insurance & Trust Co., showing title to said property vested in the party of the first part [defendant], free from all encumbrances, made, done or suffered by said first party.” Plaintiff, who seems to have been put in possession immediately…

Dissenting—I dissent. As is stated in the opinion of the majority of the court the appellant, the vendor in the contract, covenanted to do two things. First, to execute “a good and sufficient deed of grant conveying said land”; second, to “deliver a good and sufficient certificate of title . . . showing title to said property vested in the party of the first part free from all encumbrances, made, done or suffered by said first party.” The dispute between the parties upon this appeal centers upon the construction of the provisions above quoted. The appellant concedes that if he had simply agreed to deliver a good and sufficient deed without mentioning the character of the title to be conveyed, a stipulation would exist by implication that the deed must carry with it a good and sufficient title. Haynes v. White, 55 Cal. 38 ; 39 Cyc. 1446, is authority for this proposition. But it is argued that the provision, “and to deliver a good and sufficient certificate of title showing title to said property vested in the party of the first part free from all encumbrances made, done or suffered by said first party,” is a qualification of the phrase just preceding it, to wit, “agrees to execute…