Borchard

The plaintiff and defendant entered into a written agreement, wherein the defendant agreed to sell and convey to plaintiff lands in Ventura County, and upon certain payments being made, to execute and *349 deliver to plaintiff a good and sufficient deed of bargain and sale of the premises, free and clear of all encumbrances. The plaintiff was to, and did, pay defendant twelve hundred dollars at the time the agreement was entered into, but made no other payment, claiming, among other things, that defendant did not have title to a large portion of the land. Plaintiff brought this action to recover the twelve hundred dollars paid to defendant as above stated;

On the trial, plaintiff introduced in evidence the agreement set forth in the complaint, in which, for the consideration mentioned therein, the defendant promised to execute and deliver to plaintiff “a good and sufficient deed of bargain and sale to said property, free and clear of all encumbrances.” To prove that he had executed such a deed, the defendant offered in evidence a deed which purported to grant, bargain, and sell and convey unto the plaintiff, and to his heirs and assigns forever, all the right, title, and interest…