Hartman

I am unable to agree with a majority of the Court in its interpretation of the deed from Olvera to Hartman. Though the phraseology employed in the description of the interest *492 conveyed is somewhat awkward, and not altogether free from obscurity, it becomes sufficiently free from ambiguity when considered in the light of the surrounding circumstances. It recites the previous conveyance to Crosby, the consideration for which it was made, and his failure to perform the contract, by reason of which the consideration failed. It then describes the interest intended to be conveyed to Hartman, as the same undivided one-third which had been “ conveyed as aforesaid to said Elisha O. Crosby.” The only purpose of this description was to repel the inference that the grantor intended to convey to Hartman any portion of the undivided two-thirds which he retained after the conveyance to Crosby. In other words, the manifest and only purpose of the grantor was to substitute Hartman to such rights in the land as Crosby would have had if he had performed the contract, and none other. If Hartman did not acquire that interest, he took nothing by the deed; and to hold that this limitation upon the…

It is satisfactorily shown that, in the year 1854, Olvera, by deed of bargain and sale, conveyed to E. O. Crosby the undivided third of the Rancho Cuyamaca; that the only consideration therefor was the agreement of Crosby to prosecute to a final determination before the Board of Land Commissioners and the courts of the United States, the claim of Olvera to the said rancho, and that Crosby failed to perform his agreement. The title to the undivided third of the rancho vested absolutely in Crosby, and his agreement did not constitute a condition, upon a breach of which *489 the title would revest in Olvera; but a breach of the agreement only gave Olvera a cause of action for damages. The title to the undivided third of the rancho was conveyed, in 1855, by Crosby to S. J. Crosby, and remained in him until his death, on the 29th of March, 1859.

On the 28th of April, 1869, Olvera executed to the plaintiff a conveyance, by which the former purported to convey to the latter “the interest in said lands or rancho heretofore conveyed as aforesaid to said Elisha O. Crosby, and which is described as follows, to wit: All the undivided one-third part of that tract of land and rancho, in the…