Fenton v. Alsip

California Supreme Court June 1, 1889

Fenton v. Alsip, 79 Cal. 402 (Cal. 1889)

21 P. 839; 1889 Cal. LEXIS 739

Works

Opinion of the Court

Works, J.

—This is an action to recover money paid as a part of the purchase-money for real estate for which the plaintiff claims he got no title.

There was a nonsuit granted by the court below on the ground that the plaintiff had received a deed for the property, and the title having vested in him, he must tender a reconveyance of the property before he could recover back the money paid by him. But the evidence *404shows beyond any question that the property deeded to the plaintiff was not the property purchased by him, but of lots in a different block, and that immediately upon discovering the fact, he declined to go further with the trade and did not take the deed, although it had actually been placed in his hands. This was not a delivery of a deed for the property the plaintiff had purchased, and vested no title in him. It was not necessary, therefore, that he should have tendered a conveyance of the property before bringing this action.

Judgment reversed.

McFarland, J., Sharpstein, J., Thornton, J., and Paterson, J., concurred.

Reference

Full Case Name: JOHN F. FENTON v. E. K. ALSIP
Status: Published
Syllabus: Vendor and Purchaser—Deed—Delivery—Passing Title — Recovery Back oe Purchase-money—Tender of Reconveyance.— When a deed of property given by a vendor describes town lots in a different block from those purchased by the vendee, and upon discovery of that fact, the vendee declines to go on with the trade, and does not take the deed, the fact that it had been actually placed in his hands does not constitute delivery of a deed for the property purchased, and the deed vested no title in the purchaser. He is not therefore bound to tender a reconveyance of the lots described in the deed before suing to recover the purchase-money paid for the property purchased to which no title was received from the vendor.