ROBERT H. VANCE, and FAXAN D. ATHERTON v. JOSE DEMETRIO PEÑA, JESUS PEÑA, JUAN PEÑA, GAVANIO PEÑA, SUMATRIA PEÑA, NESTORIA PEÑA, and FRANCISCO PEÑA, 33 Cal. 631

By the Court, Shaeteb, J. : The only lands which the deed of Juan Felipe Peña to the plaintiff Yance purports to convey on the southeasterly side of the creek,, referred to in the deed, are lands that had not been conveyed by Yaca and Peña prior to the date of the deed to some person or persons other than William Fore. The covenant of warranty in the deed relates to lands which the deed purports to convey, and not to the lands contemplated by the covenant on which the action is brought, and which lands the deed does not purport to convey.

This latter covenant contains two alternative stipulations; one to the effect that if it shall turn out that any of the lands lying on the southerly side of the creek have theretofore been conveyed by “Yaca and Peña” to any person or persons other than Fore, he, Peña, will convey those lands to Yance in the event that they shall be. reconveyed to him, Peña.

But if the lands so distinguished should turn out to have been conveyed by Yaca and Peña to any person other than Fore, and if Peña should fail to procure them to be conveyed to himself, then Peña covenanted that he would convey to Yance other lands' in the County of Solano equal in value to the lands aforesaid. Under both these alternative stipulations, the obligation of Peña to convey land to Yance is made to depend upon whether Peña and Yaca had made any joint conveyance of land on the south side of the creek prior to the date of the covenant.

No such joint conveyance is alleged, and the complaint is bad in not stating a casus foaderis under the covenant counted on. Judgment affirmed. Neither Mr. Chief Justice Currey nor Mr. Justice Rhodes expressed an opinion.