Sprague v. Edwards

By the Court, Crockett, J.: The demanded premises are included, within the grant of June 18, 1841, from the Mexican Government to John A. Sutter, and which has been finally confirmed, located and patented. The plaintiff’s chain of title consists: Eirst, of a deed from Sutter and .wife to Eobinson and others, dated July 1, 1850; second, a deed from Eobinson and others to Saunders, dated June 23, 1855; third, a deed from Saunders to Tevis, dated July 23, 1864; fourth, .a deed from Tevis to the plaintiff, dated July 3, 1869. I shall assume for the purposes of this decision (without, — 246 — however, expressing any opinion on the point), that the deeds from Sutter and wife to Robinson and others, and from the latter to Saunders, were effectual in law to vest in Saunders the legal title to the land in controversy; and that the deed from Tevis to the plaintiff conveyed to the latter whatever title Tevis acquired under the deed from Saunders. The remaining inquiry on this branch of the case is, whether the deed from Saunders to Tevis was operative in law to vest in him the legal title- to the demanded premises; for the legal title only is in issue in this action. The plaintiff counts upon a title in fee, and the answers do not set up any equitable defense whatever, and put in issue the legal title only. The legal effect of the deed from Saunders to Tevis must be determined by the instrument itself, construed in the light of the surrounding circumstances. The deed from Sutter and wife to Robinson and others, after reciting Sutter’s title to the large tract situate between the Sacramento and Feather rivers, also recites that his possession had been invaded by numerous persons who deny his right and title to the possession, and that these unlawful acts have caused him great annoyance. Under these circumstances he conveys the whole tract, with certain reservations, together with all the other lands in the State to which he and his wife were entitled, to Robinson and others, who on their part undertook at their own expense to protect his title and possession, and to pay over to him one sixth part of all the proceeds of sales of the land. The deed from Robinson and others recites that differences and controversies had arisen between themselves and Sutter in respect to the manner in which they had performed their covenants contained in the deed from Sutter and wife, of July 1, 1850, and that for the purpose of ending these controversies it had been mutually agreed that they would convey to Saunders, 'in trust for Sutter, twenty-six-one-hundredths of the tract situate between the Sacramento and Feather rivers, and also the whole of all the other lands conveyed to them by Sutter and wife, excepting, however, from the conveyance such lands as had been sold and conveyed by — 247 — Eobinson and others. Sutter, on his part, agreed to release his claim or title to seventy-four one-hundredths of the tract situate between the Sacramento and Feather rivers, with certain reservations, and also to release Eobinson and others from a further performance of their covenants. These facts appear on the face of the conveyances. The deed to Saunders recites a nominal consideration of one dollar only, and is made upon the express trust that Saunders will rent, lease or sell the lands conveyed to him and receive the proceeds thereof, out of which he shall pay: First, the taxes, assessments and charges upon the land; second, the expense of maintaining and defending actions concerning the land; third, any debts that may be due and owing from Sutter to 'any person whatever; fourth, the remainder, if any, to be paid to Sutter. That clause of the deed which authorizes Saunders to sell and convey the land concludes in these words: “Subject, however, to the appeal of the said John A. Sutter.” It is contended on behalf of the defendants that the word “ appeal ” in this sen- ' tence is evidently a mere clerical error for the word “ approval;” that the error is manifest from the face of the deed itself, and that the instrument should be read as if the word “approval” were substituted for “appeal.” Upon this reading of the" deed they claim that Sutter’s approval of all sales and conveyances to be made by Saunders was a condition precedent, without the performance of which Saunders had no power to sell or convey. On the other hand, the plaintiff insists that the word “appeal ” as here used is meaningless, and must be disregarded; that the Court has no power to substitute another word or sentence for a meaningless phrase employed in the instrument; but that, even though Sutter’s consent be deemed a condition precedent, his consent will be presumed after so great a lapse of time. In general, doubtful clauses in a deed are construed most strongly against the grantor, and as favorably to the grantee as the language will permit. The same rule holds good as between a trustee of an express trust, having no interest in the trust fund, and the pestíd que trust. In such cases doubtful clauses in the — 248 — instrument creating the trust, are construed strictly as against the trustee acting under a power, and most favorably to the beneficiary under the trust. In this case Saunders paid nothing for the property, and had no interest in the trust fund, there being no provision in the deed even for his compensation as trustee. He held the title for the exclusive benefit of Sutter, who was the only real party in interest under the deed to Saunders as his trustee. As between Sutter and Saunders, the powers of the latter are to be strictly construed, and in performing the trust he could not transcend the authority conferred upon him. In construing the phrase, “ subject, however, to the appeal of the said John A. Sutter,” we must look to the circumstances under which it was inserted in the deed, and must give some effect to it, if practicable. When it is remembered that in the deed to Eobinson and others, Sutter had conferred upon them somewhat similar powers in respect to the management and disposition of his large landed estate, and that serious controversies had arisen in respect to the manner in which they had performed their trust, the presumption is strong that in selecting a new trustee to manage and dispose of his estate, he would impose upon him such restrictions as would prevent an abuse of his powers. Thatj the words already quoted were inserted for that express purpose, and were intended to limit and qualify the power of the trustee over the estate, can admit of no reasonable doubt. Following, as they do, immediately after the power of sale conferred upon the trustee, they were obviously intended to limit his absolute power of disposition, and to render it necessary that Sutter’s consent should be had before his whole estate was disposed of. It is true the word “ appeal” is not the most apt word that could have [been] selected to express this meaning, and I. have but little doubt, that through a mere clerical error, it was inserted by mistake for the" word “ approval.” But whether this word was used through inadvertence, or from an ignorance of the proper meaning, of the word, it is apparent, I think, not less from the context than from the previous recitals in the deed and all the circumstances sur — 249 — rounding the transaction, that the word “appeal,”as here used, was intended to be synonymous with “approval.” It is not the practice of Courts of Justice to divest persons of their estates by a rigid adherence to the rules of grammatical construction, or by a strict interpretation of the language of an instrument, when the sense in which the words were used is apparent from other portions of the instrument, viewed in the light of the attending facts. The sole object to be attained in the construction of contracts is to ascertain the real intention- of the parties; and with this view the whole contract and all its provisions, together with the relations of the parties towards each other, will be considered; and effect will be given to the intent thus ascertained, however clumsily the instrument may be worded, and however grossly it may violate the strict- rules of grammatical construction. (Racouillat v. Sansevain, 32 Cal. 376, Hancock v. Watson, 18 Cal. 137; McNeil v. Shirley, 33 Cal. 202; Saunders v. Clark, 29 Cal. 299; Brannan v. Mesick, 10 Cal. 105, 106.) Tested by the rules of construction adopted in these cases, there can be no doubt, I think, that. the approval of Sutter was a condition precedent to the exercise of the power of sale and conveyance conferred upon Saunders, and that the latter had no power to sell or convey the land without the previous consent of Sutter. His consent must be affirmatively shown, and will not be presumed. (Hill on Trustees, 4th Am. Ed. 747, and cases cited; Sympson v. Hornsby, Free. Ch. 474; Barber v. Cary, 1 Kernan, 397; Greenhan v. Gibbenson, 10 Bing. 363; Wright v. Wakeford, 17 Ves. 454; Warburton v. Farn, 16 Sim. 625.) There being no proof in this cause, that Sutter has at any time consented to or approved of the conveyance to Tevis, the deed from Saunders was inoperative to convey the title which he held in trust; and the plaintiff therefore acquired no title under his deed from Tevis. Judgment reversed and cause remanded for a new trial. The foregoing opinion was delivered at the January term, 1872, and a rehearing having been granted, the following opinion was delivered at the April term, 1874. — 250 — By the Court, Rhodes, J.: Assuming that the deed of Robinson and others to Saunders, conveyed to the latter the legal title to the premises, the question presented for consideration, is whether the legal title passed by the deed of Saunders to Tevis. This involves the construction of the clause in the deed of Robinson and others to Saunders, to the effect that the latter was thereby empowered to sell and convey the lands, “subject, however, to the appeal of said John A. Sutter.” The opinion heretofore delivered on that question will stand as the opinion of the Court. The word “appeal,” was inserted, we think, by a clerical error, for the word “approval,” and will be so head in an action at law, and resort need not be had to a Court of equity, for a reformation of the instrument in that respect. The deed of Saunders to Tevis, without the approval of Sutter, would not pass the legal title to the lands. The approval of Sutter must be shown, and as the title would not pass without such approval, the approval must be in writing. Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith. Mr. Justice McKinstry did not express an opinion.