TEWKSBURY v. O'CONNELL, 21 Cal. 60

Norton, J. delivered the opinion of the Court Field, C. J. and Cope, J. concurring. This is an action of ejectment, brought to recover certain premises which are a part of a tract of land called the San Pablo Rancho. The defendant claims to be the owner of the undivided one-twenty-fourth part of the rancho.

After setting up this title and denying the plaintiff’s asserted title, the defendant for a second answer sets up, as an equitable defense, that the plaintiff claims title in severalty to the demanded premises under and by virtue of a certain agreement for a partition of the San Pablo Rancho, and which agreement and the proceedings taken under it the defendant charges are void, and asks to have them so adjudged. The plaintiff in his replication admits that he claims title in severalty under that agreement, and asserts the validity of the agreement and the proceedings under it.

The issue arising out of this so-called equitable defense was tried separately, and a judgment rendered that the agreement was void as against the defendant and his grantors, and enjoining the further prosecution of the action by the plaintiff to recover the demanded premises. The plaintiff appeals from the judgment and from an order denying a motion for a new trial. On the trial, the plaintiff offered in evidence the above-mentioned agreement for partition. Objection was made to its admissibility, on the ground that it had not been executed by John T.

Dean, Francisco Martinez de Soto, Merced Martinez de Welch, and José Ramon Castro, who were named as parties to it, nor by Joseph Emeric, not named as a party, but who is said to be admitted by the pleadings to be interested in the rancho. This objection was sustained, and the proffered evidence excluded, to which ruling the plaintiff excepted. The defendant’s title was derived from Victor Castro and E. W. Leonard, by a deed made after the date of the partition agreement, which agreement was signed by them.

Ko question is made but that this agreement is valid against the defendant, if it was valid against his grantors. The first point, therefore, which arises in the case, is whether this agreement is valid and binding against those who executed it, although it has not been executed by others who are named in it as contracting parties, and who are declared in it to have interests in the land proposed to be partitioned^ The agreement is between nine parties, and each party consists of several persons.

It provides that three persons named as Commissioners, after setting apart and allotting portions of the rancho to the parties of the first and second parts, shall divide the residue into 'seven equal parts, allotting one part to each of the remaining seven parties, and then each party releases and Conveys to the others all his title and interest in the portions of the rancho not assigned to him.

The grantors of the defendant are among the parties of the seventh part; José Ramon Castro, who did not execute, is one of the parties of the third part; and Francisco Martinez de Soto and Merced Martinez de Welch, whose signatures were affixed by a person who, it appears, had no authority so to do, and who are therefore deemed not to have executed, are among the parties of the ninth part. The Commissioners made the partition and allotment as provided by the agreement, except in some particulars not important to consider in this connection.

The plaintiff claims that, upon such allotment being made, the agreement took effect as a release and conveyance, by those who executed it to the other parties, of all their title and interest in the parts allotted severally to those other parties; and thus that the grantors of the defendant have conveyed to the grantors of the plaintiff all them title to that portion of the rancho allotted to the plaintiff’s grantors, and which embrace the demanded premises.

If this be so, the result will be that the defendant’s grantors have parted with their undivided interest in the whole of the rancho except that portion allotted to them, but have not a complete title in severalty to the portion allotted to them, inasmuch as the agreement and the proceedings under it can have no effect to transfer to the defendant’s grantors the undivided interest in the portion allotted to them which belonged to the parties who did not execute the agreement.

The defendant claims that the possibility of such an injustice is a conclusive argument in support of his position that an agreement like the one in question, between several parties, where performance by one is the consideration for the performance by the other, could not be intended to be, and cannot legally be held to be, binding upon any party until executed by all. In support of the defendant’s position, the case of Townsend v.

Corning (28 Wend. 435) is cited, in which Judge Bronson says: “ A writing inter partes is prepared, by which one party is to covenant for the payment of money and the other for the conveyance of lands—each of these mutual covenants being the consideration for the other. One party sits down and executes; but the other stops short, and, for some cause, no matter what, does not execute the instrument. It is impossible^ I think, to maintain that the party who has refused or neglected to bind himself can set up the instrument as a binding contract against the other party.

There was, I think, a condition implied from the nature of the transaction, that the signing of one party should go for nothing unless the other signed also. But whether I have assigned the proper reason for the rule or not, the conclusion to which I have arrived, that the party who signs cannot be bound where the execution is thus incomplete, is not only in accordance with the justice of the case, but is well supported by authority.” (See also the cases of Livingston v. Rogers, 1 Caines, 584, and Emery v. Neighbour, 2 Halstead Com. L. 145.) These authorities fully sustain the defendant’s position.

In the absence of any circumstance other than what appears on the face of the instrument, we think it cannot be held that this agreement was executed by the plaintiff’s grantors and delivered to take effect like a deed poll, upon their affixing their own signatures, but that it was an inchoate instrument, only to become effective when executed by all the persons named as parties. Certain cases are cited by the plaintiff, in which instruments have been held operative when not executed by all the parties.

Without entering into a separate examination of each case, it will suffice to say that they are cases in which, from the terms of the instrument, or from the nature of the subject-matter of the contract, it appeared that it was the intention of the parties who signed to be bound, without reference to an execution by all the parties; or where, by acting under it with a knowledge that it had not been fully executed, the parties had become estopped from denying its obligation upon them.

Considered, therefore, as a conveyance, we think the agreement in question was void as against the defendant’s grantors, and gave no title to the grantors of the plaintiff. But it is said that a partition, though not effected by a valid deed of conveyance, may become effectual by a ratification or adoption; and it is claimed that the parties who did not execute this agreement have adopted and ratified the partition made under it, and that thus the partition has become complete, and each of the parties become invested with the full title in severalty to the portions allotted to them respectively.

Undoubtedly there are many cases in which partitions made by parol or by defective instruments have been held to have become effectual by the parties taking and holding in severalty, in pursuance of their terms, and dealing with their portions as if owned in severalty.

Whether this occurs upon the ground that partition is not strictly a transfer of title, but only a determination of boundaries, which does not require to be effected by deed, or whether it rests upon the principle of estoppel, by which a party who takes the benefit of such a transaction is forbid to say it was not duly effected, is not material to inquire." It may be conceded that the parties who did not sign the agreement have so acted in relation to the property since the partition that, if they should bring an action to recover their former interest in a portion of the ranch not allotted to them, they might be estopped from denying the partition; but does that either show that the agreement is binding in itself upon the defendant’s grantors, and a good deed by them, or that they are estopped from denying the partition ?

They have done nothing to ratify or adopt the partition, and nothing appears in the case to bind them to abide by it, unless they are bound by the agreement.- They become parties to a written instrument, by which they agree that their undivided interest in certain portions of the rancho shall be transferred to other persons, upon condition (for such we deem to be the effect of the agreement) that such other persons shall also become parties to that agreement, and by the agreement convey to them in severalty a portion of the rancho equivalent to the undivided interest to be surrendered by them.

They did not agree that their undivided interest should be transferred on any other terms than that an interest in severalty should be conveyed to them by the operation of that same instrument. This has not been done, and hence the instrument is not operative as against them, and they have in no other manner transferred them undivided interest in the rancho, nor done any act hy which they are estopped from asserting their title to an undivided interest in the whole rancho.

All the rights which the defendant’s grantors had in this respect, at the time of them conveyance to him, have vested in and may be asserted by him. We are pressed with the consideration that many third persons may have acquired supposed interests in severalty under the various parties to this partition agreement, and that for this reason it should be sustained. Such considerations are always regarded by Courts as far as they can be without violating legal principles; and it is under such influences that the Courts have gone very far to uphold parol partitions and to apply the doctrine of estoppel.

But we have no power to give vitality to void contracts, or to create estoppels where none have arisen from any act of the parties sought to be estopped. Such, we think, would be the effect of a decision that the defendant or his grantors ha,d parted with or are estopped from asserting the title to an undivided interest in the San Pablo Rancho, which it is conceded they had at the date of that agreement. The judgment must be affirmed.