Ward

The parties hereto entered into an agreement in writing February 24, 1893, by which the plaintiff agreed to sell to the defendant for the sum of four thousand seven hundred and fifty dollars certain property in the city of Los Angeles, and the defendant agreed to buy the same and pay said sum of money within thirty days thereafter. The circumstances leading up to this agreement are as follows, viz: The title to the property in question was originally in Francisca D. de Labracco, and in an action by Yorba, the defendant herein, against Labracco the property was attached March 5, 1892, and judgment was rendered in his favor April 20, 1892. Execution was issued upon this judgment July 10, 1892, and on August 20th the property was sold by the sheriff to Yorba. Prior to March, 1892, an action had been commenced against Labracco by one Bacon, in which a judgment was docketed against Labracco March 31, 1892, and under this judgment the property was sold to one Jarvis, and a sheriff’s deed issued to him January 27, 1893. Jarvis immediately took possession of the property, and on January 30, 1893, conveyed the same to Ward, the plaintiff herein. By this conveyance the plaintiff became at…

I concur in the judgment and generally in the opinion of Justice Harrison. It seems proper, however, to add with respect to the alleged mistake in the written contract that the evidence is in my opinion sufficient to sustain the view that Yorba fully understood at the date of the contract that he was not bargaining for a perfect title to the property, but only such interest as Ward had acquired by his deed from Jarvis, and that he was to take that title subject to the Davilla claim and the lien of the Bacon judgment, both of which encumbrances he was to take care of. On the other hand, it is clear that up to the time the parties met to conclude the contract they all believed that the Ward title was prior and superior to the Yorba title. On that occasion Mr. Mun-day—Yorba’s legal adviser—discovered for «the first time that Yorba’s title, by reason of this attachment, was prior to the Ward title. This fact he communicated to Yorba’s interpreter, but it seems probable that neither Yorba nor the interpreter was made to understand the change thus wrought in the situation, for, notwithstanding the discovery that Ward apparently had nothing to sell, Yorba was still willing to give him a…

I dissent, and adhere to the conclusion reached at the first hearing. (Ward v. Yorba (Aug. 2, 1898), 54 Pac. Rep. 80 .) I think that the judgment and order appealed from should be affirmed.

Rehearing denied.