Terry, C. J., after stating the facts, delivered the opinion of the Court
Burnett, J., and Field, J., concurring.
The case, as presented by the record, involves three questions :
First, as to the character of the conveyance from Sutter to Brannan and others.
Second, the effect of the registration; and,
Third, whether the conditions were performed by the vendees.
The objection on the ground that one of the grantees was the trustee or agent of Sutter, and that the purchase was a fraud on his cestui que trust, is not supported by the record. The only evidence on this point is that of Wetzlar, who says that he was requested by Sutter to find purchasers for the land; that he found parties who were willing to purchase three-fourths, and that Sutter himself requested Wetzlar to become the purchaser of the remaining one-fourth upon the terms already agreed on between Sutter and Brannan.
There is no evidence that Wetzlar sustained any fiduciary relation with Sutter, or had any peculiar knowledge of his affairs, before the execution of the deed; his agency, according to the evidence, began after that period.
The first step in the construction of a deed is to ascertain the understanding and intention of the parties at the time of contracting.
“When it is necessary to give an opinion upon the doubtful words of the deed, the first thing we ought to inquire into is, what was the intention of the parties ? If the intention of the parties be as doubtful as the words, it will be of no assistance at all; but if the intent of the parties be plain and clear, we ought, if possible, to put such a construction on the doubtful words of a deed as will best answer the intent of the parties, and reject [106]*106that construction which manifestly tends to overturn and destroy it.” (Parkhurst v. Smith, Willes, 322.)
To arrive at this intention, the situation of the parties, and the subject-matter at the time of contracting, should be considered; the whole deed should be taken together, and, if possible, effect should be given to all of its parts. “ It is a true and important rule of construction, that the sense and meaning of the parties to any particular instrument, should be collected ex antecedentibus et consequentibus; that is to say, every part of it should be brought into action, in order to collect from the whole, one uniform and consistent sense, if that may be done; or, in other words, the construction must be made upon the entire instrument, and not merely upon disjointed parts of it; the whole context must be considered in endeavoring to collect the intention of the parties, although the immediate object of inquiry be the meaning of an isolated clause. In short, the law will judge of a deed or other instrument, consisting of divers parts or clauses, by looking at the whole; and will give to each part its proper office, so as to ascertain and carry out the intention of the parties.” (Broom’s Legal Maxims, 442.)
The reason of this rule is, that the “ same parties make all the contract, and may be supposed to have the same purpose and object in view in all of it; and if this purpose is more clear and certain in some parts than in others, those which are obscure may be illustrated by the light of others." (2 Parsons, 14.) If several instruments are made at the same time, by the same par-tics, and in relation to the same subject, the intention of the parties is to be gathered from all the instruments, taken together, and the recitals in each may be explained or corrected by reference to any other. (Ib., 15.) Oral evidence is sometimes admissible to explain, but not to contradict or vary the terms of a written contract; thus, if the words of a contract be ambiguous, its meaning may be gathered from contemporaneous facts which intrinsic testimony establishes. If, when the intention is thus ascertained, it is found that the words will fairly bear a construction which makes them express this intention, then the words will be so construed, and the contract in this sense, or with this interpretation, will be enforced as the contract which the parties had made. The distinctions between patent and latent ambiguities, are now regarded as intended to enable the Court to distinguish between cases curable and those of incurable uncertainty; to carry the aid of evidence as far as it can go, without making for the parties what they did not make for themselves. (2 Parsons, 75.)
Taking the deed from Sutter to Brannan and others as a whole, and testing it by the above rules, it is clear that Sutter intended to convey all his real estate in California; but, in view of the state of affairs then existing, he was unwilling to part with the [107]*107legal title until bis vendees had fully complied with the conditions of the sale. At the time of making the contract, California had just completed the organization of a State government; the operation of the judiciary system adopted had not been tested; the population was unsettled; sudden changes in the fortunes of individuals were constantly occurring, and personal security was of little value. It was, therefore, natural that a party disposing of valuable real estate should retain the legal title in himself as the best possible security for the payment of the purchase-money.
We are satisfied that the deed in question was intended as a conveyance upon condition precedent, and that the grantees could acquire no title under it until the condition had been performed. If it had been intended as a conveyance in presentí, there could have been no necessity for inserting the power of attorney to enable the grantees to dispose of their own property, nor for providing that the instrument should take effect as a conveyance upon the happening of an event in futuro. That this was the construction given to the instrument by the grantees, is shown by the fact that they assumed to act in the disposition of the property as the agents of Sutter, under the power of attorney contained in the instrument, and not in their own right. It is perfectly consistent with the words of the whole instrument, taken together, and is the only one which will give effect to all its clauses.
The instrument in question was before the Court in the case of Mesick v. Sunderland, (6 Cal., 308,) and was held to be not a conveyance in presentí, nor a conveyance in fee, with lien reserved, but “ an executory agreement for the sale of property therein described; or a conveyance on condition precedent, depending for its validity on the performance of an act in pais” and that its registration imparted no notice of its contents.
The case involved many interesting and novel points, which were argued, at great length, by able counsel. The attention of the Court was not directed—either in the oral argument or briefs on file—to the marked distinction which is recognized in the books between conveyances upon condition precedent and ex-ecutory contracts which are mere agreements to convey. It is, therefore, not surprising that the Court should have overlooked the distinction which had escaped notice of the learned and ingenious counsel who argued the case, however important such a distinction may have been, in view of the peculiar phraseology of the Registration Act.
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Terry, C. J., after stating the facts, delivered the opinion of the Court
Burnett, J., and Field, J., concurring.
The case, as presented by the record, involves three questions :
First, as to the character of the conveyance from Sutter to Brannan and others.
Second, the effect of the registration; and,
Third, whether the conditions were performed by the vendees.
The objection on the ground that one of the grantees was the trustee or agent of Sutter, and that the purchase was a fraud on his cestui que trust, is not supported by the record. The only evidence on this point is that of Wetzlar, who says that he was requested by Sutter to find purchasers for the land; that he found parties who were willing to purchase three-fourths, and that Sutter himself requested Wetzlar to become the purchaser of the remaining one-fourth upon the terms already agreed on between Sutter and Brannan.
There is no evidence that Wetzlar sustained any fiduciary relation with Sutter, or had any peculiar knowledge of his affairs, before the execution of the deed; his agency, according to the evidence, began after that period.
The first step in the construction of a deed is to ascertain the understanding and intention of the parties at the time of contracting.
“When it is necessary to give an opinion upon the doubtful words of the deed, the first thing we ought to inquire into is, what was the intention of the parties ? If the intention of the parties be as doubtful as the words, it will be of no assistance at all; but if the intent of the parties be plain and clear, we ought, if possible, to put such a construction on the doubtful words of a deed as will best answer the intent of the parties, and reject [106]*106that construction which manifestly tends to overturn and destroy it.” (Parkhurst v. Smith, Willes, 322.)
To arrive at this intention, the situation of the parties, and the subject-matter at the time of contracting, should be considered; the whole deed should be taken together, and, if possible, effect should be given to all of its parts. “ It is a true and important rule of construction, that the sense and meaning of the parties to any particular instrument, should be collected ex antecedentibus et consequentibus; that is to say, every part of it should be brought into action, in order to collect from the whole, one uniform and consistent sense, if that may be done; or, in other words, the construction must be made upon the entire instrument, and not merely upon disjointed parts of it; the whole context must be considered in endeavoring to collect the intention of the parties, although the immediate object of inquiry be the meaning of an isolated clause. In short, the law will judge of a deed or other instrument, consisting of divers parts or clauses, by looking at the whole; and will give to each part its proper office, so as to ascertain and carry out the intention of the parties.” (Broom’s Legal Maxims, 442.)
The reason of this rule is, that the “ same parties make all the contract, and may be supposed to have the same purpose and object in view in all of it; and if this purpose is more clear and certain in some parts than in others, those which are obscure may be illustrated by the light of others." (2 Parsons, 14.) If several instruments are made at the same time, by the same par-tics, and in relation to the same subject, the intention of the parties is to be gathered from all the instruments, taken together, and the recitals in each may be explained or corrected by reference to any other. (Ib., 15.) Oral evidence is sometimes admissible to explain, but not to contradict or vary the terms of a written contract; thus, if the words of a contract be ambiguous, its meaning may be gathered from contemporaneous facts which intrinsic testimony establishes. If, when the intention is thus ascertained, it is found that the words will fairly bear a construction which makes them express this intention, then the words will be so construed, and the contract in this sense, or with this interpretation, will be enforced as the contract which the parties had made. The distinctions between patent and latent ambiguities, are now regarded as intended to enable the Court to distinguish between cases curable and those of incurable uncertainty; to carry the aid of evidence as far as it can go, without making for the parties what they did not make for themselves. (2 Parsons, 75.)
Taking the deed from Sutter to Brannan and others as a whole, and testing it by the above rules, it is clear that Sutter intended to convey all his real estate in California; but, in view of the state of affairs then existing, he was unwilling to part with the [107]*107legal title until bis vendees had fully complied with the conditions of the sale. At the time of making the contract, California had just completed the organization of a State government; the operation of the judiciary system adopted had not been tested; the population was unsettled; sudden changes in the fortunes of individuals were constantly occurring, and personal security was of little value. It was, therefore, natural that a party disposing of valuable real estate should retain the legal title in himself as the best possible security for the payment of the purchase-money.
We are satisfied that the deed in question was intended as a conveyance upon condition precedent, and that the grantees could acquire no title under it until the condition had been performed. If it had been intended as a conveyance in presentí, there could have been no necessity for inserting the power of attorney to enable the grantees to dispose of their own property, nor for providing that the instrument should take effect as a conveyance upon the happening of an event in futuro. That this was the construction given to the instrument by the grantees, is shown by the fact that they assumed to act in the disposition of the property as the agents of Sutter, under the power of attorney contained in the instrument, and not in their own right. It is perfectly consistent with the words of the whole instrument, taken together, and is the only one which will give effect to all its clauses.
The instrument in question was before the Court in the case of Mesick v. Sunderland, (6 Cal., 308,) and was held to be not a conveyance in presentí, nor a conveyance in fee, with lien reserved, but “ an executory agreement for the sale of property therein described; or a conveyance on condition precedent, depending for its validity on the performance of an act in pais” and that its registration imparted no notice of its contents.
The case involved many interesting and novel points, which were argued, at great length, by able counsel. The attention of the Court was not directed—either in the oral argument or briefs on file—to the marked distinction which is recognized in the books between conveyances upon condition precedent and ex-ecutory contracts which are mere agreements to convey. It is, therefore, not surprising that the Court should have overlooked the distinction which had escaped notice of the learned and ingenious counsel who argued the case, however important such a distinction may have been, in view of the peculiar phraseology of the Registration Act.
The Act concerning Conveyances, passed 1850, provides that every conveyance whereby any real estate is conveyed, or may be effected, which shall be acknowledged and recorded pursuant to the act, shall, from the date of filing with the recorder, impart [108]*108notice to all persons of its contents, and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.
The term conveyance, as defined by the thirty-sixth section of the act, embraces “ every instrument in writing, by which any real estate, or any interest in real estate is created, aliened, mortgaged, or assigned, except wills, leases for a term not exceeding one year, executory contracts for the sale or purchase of lands, and powers of attorney.”
A deed on condition precedent vests the title in the grantee, on the performance of the condition, without any further act on the part of the grantor, and being “ an instrument in writing affecting real estate,” not within the exception mentioned in the thirty-sixth section of the Registration Act, its record imparts notice of its contents to all persons.
Mesick must be deemed a purchaser with notice. The registration of the deed was sufficient to put him upon inquiry as to the performance of the condition, and he stands in the same relation to the plaintiff as his immediate grantor. As the validity of plaintiff’s title depends upon conrpliance on his part with the conditions of the deed, and. the evidence of this fact rests in parol the deed from Sutter to Mesick, which in effect denies the compliance, it is a cloud upon his title which a Court of Equity, under proper circumstances, will remove. But in order to entitle himself to equitable relief, it is necessary to show a performance in good faith of every duty imposed upon him by the deed.
“ Conditions precedent are such as must happen, or be performed, before the estate can vest or be enlarged; they admit of no latitude; they must be strictly, literally, and punctually performed. It is a known maxim, that where the estate is to arise upon a condition precedent, it can not vest till that condition is performed, and this has been so strongly adhered to, that even where the condition has become impossible, no estate or interest grew thereupon. Where a condition copulative precedes an estate, the whole must be performed before the estate can arise; or where an act is previous to any estate, and that act consists of several particulars, every particular must be performed before the estate can vest or take effect.” (2 Dallas, 317.)
Payment of the purchase-money being a condition precedent to the vesting of title in the plaintiff, it follows that unless such payment was made, the legal title remained in Sutter, and passed to Mesick under the deed of July, 1855.
On the question of payment, the evidence is by no means satisfactory. The receipts amount only to prima facie evidence, which may be rebutted by oral testimony. The fact that they were acknowledged before a notary, imparts to them no additional weight. A receipt is not regarded as a contract, and hardly as an instrument at all, and has but little more force than the oral admission of the party receiving. (2 Parsons, 68.) [109]*109Whether the fact of acknowledging the receipt of the consideration, and neglecting for a long period of time to assert title to the property conveyed, would estop Sutter or his grantee from denying the performance of the condition upon which the legal title was to pass, as against innocent purchasers from Brannan and his associates, is a question which does not arise in this ease; he is certainly not concluded by these acts in a controversy with the original parties to the conveyance.
It is shown by the plaintiff’s witness that the money was not, in fact, paid; that Sutter was induced to make a deduction of over forty thousand dollars, upon a representation that a portion of the property conveyed had been previously deeded away by Sutter, which representation, it appears, was not true. It also appears that an amount of money due Sutter on a former sale of lands, and secured by mortgage, was collected by Wetzlar under his power of attorney, and appropriated to the use of Brannan & Co., under the claim that the conveyance of June, 1850, had operated as an assignment of the debt.
The testimony of Wetzlar, one of the original parties to the deed, taken in connection with his manifest prevarication on many points, and the fact that his memory was totally at fault as to transactions concerning the same property in which he was personally engaged subsequent to the execution of the deed, while it was perfect as to the occurrences at the time of. its execution, raise a strong presumption of fraud as to the settlement.
We think the evidence of payment was not sufficient to entitle the plaintiff to relief in a Court of Equity.
Judgment reversed, and bill dismissed.