Kelly v. Mack

By the Court: This is an action to recover the purchase money for a tract of land sold by the plaintiff to the defendant, and to enforce [304] a vendor’s lien. One of the terms of the contract of sale was, that upon the payment of the purchase money the plaintiff would execute and deliver to the defendant a deed of conveyance of his (the plaintiff’s) right, title, and interest in the land. The complaint contains no allegation of the tender of a deed of conveyance, and on this ground, among others, the defendant demurred to the complaint. The demurrer should have been sustained on this ground. That is the well established doctrine of this Court. (Hill v. Grigsby, 35 Cal. 661; Bohall v. Diller, 41 id. 532.) Judgment reversed and cause remanded, with directions to sustain the demurrer to the complaint.