JOHN B. FRISBIE v. HANNAH A. MOORE and R. E. F. MOORE, her Husband, 51 Cal. 516

By the Court: It appears from the agreed statement of facts that in the year 1861, the plaintiff, being a purchaser from Vallejo (the grantee of the Mexican Government), of a parcel of land included in the Suscol rancho, sold it to the female defendant, then an unmarried woman, and conveyed it to her by a deed containing no covenant of warranty; that a portion of the purchase money was paid at the date of the deed, and the vendee then executed to the plaintiff her obligation in writing, whereby she undertook to pay him the further sum of $1,000 with interest, “ on the final confirmation by the constituted authorities of the Government of the United States of America, of the rancho of Suscol, in the State of California;” and at the same time executed a mortgage to the plaintiff on the premises conveyed, to secure the performance of the obligation.

The action is to enforce payment of the $1,000, with interest, and for a foreclosure of the mortgage. It further appears that, at the date of the conveyance and of the obligation and mortgage, the claim of Vallejo for a confirmation of his title to the Suscol rancho was pending and undecided in the Supreme Court of the United States; but was subsequently finally rejected and pronounced invalid by that court.

It also appears that on obtaining the conveyance from the plaintiff, the vendee entered into and has ever since remained in possession of the premises conveyed; and that on the passage of the Act of Congress of March 9, 1863, granting to purchasers from Vallejo the right to pre-empt the land so purchased, she instituted proceedings under that act to obtain the title of the United States, and ultimately succeeded in obtaining a patent for the land under that act, but in accomplishing this result was forced to expend a considerable sum of money.

The court below, after crediting her with the sum so expended, entered a judgment against her for the remainder of the $1,000 and interest, and directed a foreclosure of the mortgage for the balance so ascertained, and from this judgment the defendants appealed. The plaintiff contends that the case is not distinguishable in principle from Snow v. Ferrea (45 Cal., 195).

But in that case the contract was entered into after the title to the Suscol rancho had been finally rejected, and the undertaking of the vendee was that “ on demand after Henry Hannibal (the vendor) shall obtain the title of the United States of America, and execute to me a good and valid warranty deed against all parties, the United States of America included, in and to what is known as the Brownlee field upon the Suscol rancho,” the vendee would pay to the vendor a specified sum. In the present case, the contract and the circumstances under which it was entered into were quite different.

The vendee undertook to pay the $1,000 on one condition only, viz.: on the final confirmation of the title to the rancho, and that event has not occurred. She did not undertake to pay, as in Snow v. Ferrea, on the wholly different condition that the vendor would procure the title of the United States, and convey it to her by a deed of warranty. When the title was finally rejected, and the condition became impossible of performance, there was an end of the contract to pay.

To hold that the liability of the vendee was revived by reason of subsequent legislation, not looking to a confirmation of the title, but proceeding expressly on the ground that the title was void, would be not to interpret the contract which the parties made, but to make for them a wholly different contract, not within their contemplation at the time. It cannot be denied that the liability of the defendants under the contract ceased by its very terms when the title to the rancho was finally rejected, and it cannot be revived except by a new contract. For these reasons the defendants were entitled to judgment.

Judgment reversed and cause remanded, with an order to the court below to enter judgment for the defendants.