Weller

On June 15, 1906, respondent, Louisa M. Brown, (wife of her codefendant), being the owner of a tract of land in Port Bragg, Mendocino County, conveyed to appellant by a grant deed a strip sixty feet wide extending across the entire width of her tract and leaving her with a parcel adjoining it on each side, all three parcels fronting on Main Street. The deed was in the usual form purporting to convey the absolute title, except that it contained the following clause: “It is hereby mutually agreed between the parties of the first part and the party of the second part that the above described land is to be used as a public street and not as a lot for building purposes."

An action was brought by plaintiff to quiet his title to this strip and a judgment was rendered in his favor in the superior court of said Mendocino County, but this was reversed by the supreme court and the cause remanded for a new trial. (Weller v. Brown, 160 Cal. 515 , [ 117 Pac. 517 ].) Before the action was tried again plaintiff amended his complaint, alleging that by reason of a mistake as to the legal effect of the language of said deed it did not correctly express the intention of the parties to the contract,…