Vance v. Peña

By the Court, Rhodes, C. J.: The complaint states, that in 1853, Peña, the father of the defendants, conveyed to Vance a tract of land which formed a portion of a rancho which had been granted to Vaca and Peña. The tract conveyed is situated southerly of Alamo Creek, but there is excepted therefrom all lands which had theretofore been conveyed by Vaca and Peña. The deed contained a covenant of warranty, and also a further covenant, in the words following: “AndI, the said Peña, do hereby covenant and agree to and with the said Vance, and his heirs and assigns, that if any of the lands lying ort the southerly side of said creek have heretofore been conveyed by said Vaca and Peña to any person or persons except that portion thereof that one William Fore has purchased and occupies, or claims at the date hereof, that in that case the said Peña will hereafter convey any of such portions of such lands as shall be conveyed to him, unto the said Vance, or his heirs or assigns; and in case the said Peña shall not be able to procure a conveyance to himself of such portions of said lands lying on the southerly side of said creek which may have been con [691] veyed heretofore as aforesaid, then said Peña shall, and will, upon reasonable notice, convey unto said Vance, or his heirs or assigns, other lands in said County of Solano (of him said Peña), in quantity and quality of equal value to such lands as may have been conveyed, as aforesaid, on the southerly side of said creek, excepting, however, any lands now possessed by said Pore under claim of title.” Before the execution of the deed to Vance, Peña had conveyed to Currey and Clark six hundred acres of the lands described in the deed to Vance. An action was brought by Vance, with the knowledge and approbation of Peña, to recover from the grantees of Currey and Clark the six hundred acres of land, and judgment was rendered against Vance; and in April, 1864, the judgment was affirmed by the Supreme Court. Vo portion of the six hundred acres was reconveyed to Peña, nor was any part of the same conveyed to Vance. In 1859, Peña owned seven thousand acres of land—part of the same rancho—and in that and the two following years he conveyed the same to the several defendants without any consideration, and for the purpose of preventing the application of the lands to the satisfaction of his covenant with Vance. The defendants took with notice of the deed to Currey and Clark, and the deed and covenants to Vance; and it is alleged that they hold the lands in trust for the performance of the covenant to Vance, and are bound to convey so much thereof as may be necessary for the full performance of the covenant. Other facts are stated in the complaint, but they are not material to a correct understanding of those grounds of demurrer which will be noticed. The decision on the former hearing was that there was no breach of the covenant, as it did not appear that “Vaca and Peña” had conveyed the six-hundred-acre tract to Currey and Clark. The soundness of that construction of the covenant is questioned by the plaintiffs. They contend that, [692] looking at the whole contract, the clause is to be read “Vaca or Peña.” It will not be necessary, however, to express any opinion on that question. One of the grounds presented by the demurrer to the complaint, is that the action is barred by the statute of limitations; and a further ground is that it is not alleged that “reasonable notice” was given to Peña or his assigns to convey any land to the plaintiffs. On the latter point, the position of the plaintiffs is that notice in fact was unnecessary, and that the want of notice would only affect the question of costs. That position may be accepted as correct, without discussion of the question whether the words of the covenant mean or necessarily imply an actual notice. The question is, when was the covenant broken by Peña? At the time Peña executed his conveyance to Vance, the six-hundred-acre tract had been conveyed to Ourrey and Clark, and it became his duty to procure a reconveyance of the six-hundred-acre tract, or to convey "to Vance other-lands, in accordance with his covenant. He was not relieved of that duty because he claimed, believed, or protested that the deed to Ourrey and Clark did not include any of the lands which were described in the conveyance to Vance. His denial that such was the purpose or effect of the deed to Ourrey and Clark, did not alter the fact that it did convey to them the six-hundred-acre tract. His covenant was not that he would procure a reconveyance of the lands which he believed, claimed, or admitted he had theretofore conveyed to others; or that, failing to procure such reconveyance, he would convey to Vance other lands in lieu thereof. His obligation arose from the fact, not from his admission or belief of the fact, of such, prior conveyance. The covenant, therefore, was broken by his failure to convey to Vance, within a reasonable time, the land theretofore conveyed to Ourrey and Clark, or other lands as provided in the covenant. [693] Admitting—as the plaintiffs contend—that Peña was entitled to a reasonable time in which to procure, or attempt to procure, a reconveyance to him of the six-hundred-acre tract, it cannot he claimed that eight years is within the limits of a reasonable time for that purpose—it not being alleged that there was any obstacle in the way of his proceeding forthwith to procure the reconveyance; and, even allowing eight years as a reasonable 'time in which to attempt to procure a reconveyance, more than four years thereafter elapsed before this action was commenced. It is also contended that the plaintiffs had no cause of action against Peña or the defendants, until the determination of the action of Vanee v. Fore, in April, 1864. The covenant is not conditional upon the event of any litigation then pending, or thereafter to be instituted. It cannot he implied from the covenant that the parties, at the time of the execution of the deed, contemplated that an , action should he brought by either of them to test the question, as to whether any of the lands described in the deed had theretofore been conveyed by Peña. The fact that an action was brought by Vance for that purpose, with the “knowledge and approbation of Peña,” did not suspend the running of the statute, if it had already commenced to run. Judgment affirmed.