Steinbach v. Leese

13 Cal. 363

• Court: California Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinion

Terry, C. J. delivered the opinion of the Court

Field, J. concurring.

This is a proceeding to foreclose a mortgage on certain property in San Francisco.

The complaint alleges that Loose and Salvador Vallejo were joint owners of the premises, under a grant from the Mexican Government; that in August, 1850, Vallejo conveyed to Leese his moiety of the property, and at the same time, and as part of the same transaction, Leese executed the mortgage declared on; the condition of which is, that Leese shall pay to Vallejo the sum of twenty thousand dollars, “in the event that the said party of the first part shall be successful in a certain suit now ponding for the recovery of said property, as above described, or in the event that he shall effect a compromise with the opposing claimants for the said property; the said sum of twenty thousand dollars to be paid when the said Leese enters into and takes possession of the said premises, by virtue of the judgment of any Court, or by any compromise that may be entered into by the said Leese and the'opposing claimants to the said property, or when said Leese shall consummate any compromise with the opposing claimants or the relinquishment of his or their claim,” and it was also agreed that “in the event the said Loose shall enter into any compromise with the opposing claimants to the aforesaid property, for the relinquishment of, or withdrawal of, his or their claim to the said property, then he is to become personally responsible to the said party of the second part for the said sum of twenty thousand dollars.”

The complaint further alleges, that in August, 1853, Leese conveyed to Gregory Tale one-half'of said property for the nominal consideration of thirty thousand dollars, but really in consideration of Tale’s services in prosecuting his claims to the property’; that Loose made other conveyances to different poi*sons of portions of the same property, retaining but a small interest therein.

That, by reason of these conveyances, Leese has “ entirely precluded himself from the possibility of performing his agreement or undertaking,” and that the sum of twenty thousand dollars became due and payable to Vallejo, under the agreement, on the 17th of August, 1853-—the date of the conveyance to Yale; that the other defendants, grantees of Leese, have interest in the property, which is “ subsequent and subject to the lien of the plaintiff,” and prays for a sale of the property’ to pay this sum due upon the mortgage, and a personal judgment against Leese for any deficiency,” etc.

To this complaint a demurrer was interposed, which was overruled, and, after a trial of the issues made by the pleadings, a judgment was rendered for plaintiff, pursuant to the prayer of the complaint.

It will be perceived, from the terms of the instrument, that the sum mentioned was to bo paid only upon the happening of one of the contingencies expressed in the instrument. It seems that Leese and Vallejo were the joint owners of real property which was held adversely’ by others. Leese, in effect, agreed to assume all the risk and expense of the litigation necessary to recovery’ upon the title, and agreed to pay’ a sum to his cotenant if he succeeded in the litigation, or effected a compromise with the adverse parties, by which be secured the possession, or parted with his title to the premises.

It is not alleged that Leese has “ succeeded in the litigation which was ponding at the time of the contract,” that he has “entered into possession of the premises by virtue of the judgment of any Court,” or that he has “ consummated any compromise with the opposing claimants for the relinquishment of his or their claim.” Yet these -were conditions precedent to plaintiff’s right to recover. It is said, however, that having by his own acts rendered the performance of the conditions of the contract impossible, therefore the conditions are dispensed with and the contract is absolute; the premises being admitted, the conclusion is irresistible; but we think the assumption that the acts of Leese set out in the conrplaint, have rendered impossible a compliance with the conditions of the contract, is erroneous. It is difficult to understand how the conveyance to Yale could be construed into a breach of the covenant to Yallejo. It seems to have been made in furtherance of the very object of the contract. The consideration of the agreement, says the complaint, was the services of Yale in prosecuting the claim. The employment of counsel was absolutely necessary to the conduct of the litigation, and certainly the adoption of a mode of compensation which was calculated to stimulate the zeal of counsel, by making his compensation depend upon the success of his efforts, could not injuriously affect Yallejo.

PTor do we perceive that the other conveyances mentioned amount to a breach of the terms of the contract, or render it impossible that 'the event upon which the sum was to become due to Yallejo should occur. In construing a contract, it is necessary, in order to arrive at the meaning and intention of the parties, that we should consider the situation of parties, the motive which led to, and the object sought to be obtained by, such contract. Leeso and Yallejo claimed title to valuable property, which was held adversely, and about which a suit was pending. The motive of Yallejo, in entering into the contract, was to avoid the risk and expense of doubtful litigation, and the object to be attained was the maintenance of the grant to Leeso and Yallejo, the recovery of possession by the owners of the grant, and the payment to Yallejo of the price agreed on. It was not necessary that Leese himself should recover; a recovery by any one claiming under him would sufficiently meet the requirements of the contract.

The vendees of Loose succeeded to bis rights in the property, subject to such conditions and burdens as attached to it in the hands of their vendor, but to no other; and if the property in the hands of Leese could be charged with the payment of the sum sued for, only upon the happening of an event in future, we see no reason why it should be sooner liable in the hands of the vendee.

It is not alleged that possession of the property has been acquired by any of the grantees of Leese, that the title has passed to the adverse holders, or that the efforts to establish the grant and recover under it, have been abandoned or suspended, in consequence of the convejmnces from Leeso.

We think the complaint does not contain facts enough to authorize a recovery, and that the demurrer should have been sustained.

Judgment reversed and cause remanded.