No. 2,319.

#### EDGAR M. MORGAN, Respondent, *v.*ABEL STEARNS, Appellant.

Contbact pob Conveyance -op Land. — Bbeach op. — Where, in pursuance of an agreement to convey land, the grantee presents a different deed to the grantor for execution than that called for in the contract, the grantor must mate his objections to the deed, -when presented or within a reasonable time, or when possession of the premises is demanded. He cannot be permitted to avail himself of it, for the first time as a defense when sued for a breach of the covenant.

Idem. — Gbantob to Execute and Tendeb Deed. — It is the duty of the grant- or to prepare, execute, and deliver the deed; the. grantee need do no more than tender the purchase money.

Idem. — Damages.—Mere nominal damages do not belong to a ease where there is a willful breach of a covenant to convey land, especially where the land has considerably appreciated in value since the mailing of the contract.

Appeal from tbe District Court of tbe Seventeenth District, Los Angeles -County.

Tbe facts are stated in tbe opinion:

*V. E. Howard*and Sepulveda, for Appellant.

*First*— Tbe contract called for a quit-claim deed, but respondent tendered a grant, bargain and sale deed, for signature of appellant and wife. This was not a demand under tbe contract. A contract to sell land and give a deed does not authorize tbe vendee to demand one executed by tbe *435wife, even if she has dower. *(Ketchum*v. *Fvertson,*13 J. E. 270. *Gazley*v. *Price,*16 Id. 267 and 12 Id. 443; *Hill*v. *Grigsby,*35 Cal. 661; 11 Wend. 50; 20 J. E. 24.)

The vendor is not put in default until the deed called for in the contract is demanded. *(Gray*v. *Dougherty,*25 Cal. 374; 2 G. Ev. SS. 605.)

*Second*— Nominal damages only can be given if plaintiff is to recover, as fraud 'is neither alleged nor proved. *(Conger*v. *Weaver,*20 N. Y., 140; *Baldiuin*v. *Mimn,*2 Wed. 400; *Peters*v. *McKenio,*4 Denio, 546; *Walker*v. Jiorse, 21 Eng. Com. L. 100; 1 Sugden’s Yendors, p. 491 and note 7th Am. Ed. Id. 222 and note; *Key*v. *Key,*3 Tenn. 448; *Seems*v. *Street,*5 Iowa, 352; Dart’s Lendors, 447; Sedgwick’s Damages, 197.)

*Third*— The refusal to perforin, on the part of the grantor, extended only to the particular conveyance demanded, and the demand for that form rendered it unnecessary and useless to tender any other. It was equivalent to a refusal to perform on the part of the vendee. *(Gary*v. *Smith,*2 Comstock, 60.)-

*Fou/rth*— After a demand unauthorized by the contract, it required a new tender and demand to put the grantor in default, and he was not bound to prepare and tender a deed. *(Carmen*v. *Pultz,*21 N. Y. 547; *Hudson*v. *Swift,*20 J. E. 25,; Id. 15.)

*Glassell, Chapman & Smith,*for Eespondent.

*First*— If appellant’s refusal to execute the tendered deed was on the ground of its form, it was incumbent on him to have-so specified. *(Carmen*v. *Pultz,*21 N. Y. 550-51; 7 Barb. 331; 29 Barb. 243 ; 8 Wend. 562.)

*Second*— There was no obligation on the respondent to tender any deed. When the money was tendered appellant, he should hp,ve tendered in turn a proper deed. (1 Sugden on Yendors, p. 308, n. 1; p. 310, n. 1; *Gray*v. *Go-ay,*25 Cal. 286; *Hill*v. *Grigsby,*35 Id. 656; 2 McLean, 495.)

*Third*— There was no necessity to either allege or prove fraud. The rule and measure of damages is distinctly *436defined in *Brmkerhqffsr. Phelps,*(43 Barb. 473,) and cases there cited.

"Wallace, J".,

delivered the opinion "of the Court, Rhodes, C. J., Temple, J., and Ceookett, J., concurring:

This is an action brought upon the following agreement:

> “ This agreement, made and entered into the 28th day of December, 1868, between Abel Stearns, of the City and County of Los Angeles, and State of California, the party of the first part, and Edgar M. Morgan, of the same City, County and State, the party of the second part, witnesses; That the said party of the first part, in consideration of the covenants and agreements on the part of the said party of the second part, hereinafter contained, agrees to *sell*unto the said party of ..the second part all that certain lot, piece or parcel of land situate, lying and being in the said city and county of Los Angeles and State of California, known by the name of the ‘Ogier property and vineyard,’ more particularly described by deeds on record, and bounded on the west by Main street; on the north by J. Huber, Captain Thom. Morgan and Chapman; on the east by Chapman *et*ál.; on the south by property owned by Catarina Moreno and lane between the property of the heirs of Augustin Machado and the said property herein described, for the sum of $13,000 gold coin of the United States of America; and the said party of the second part, in consideration of the premises, agrees to pay in gold coin of the United States of America, to the said party of the first part, the said sum of $13,000, as follows, to wit: $500 on the execution of these presents by a check on Heilman, Temple *&*Co., bankers in said city of Los Angeles, and $12,500, gold coin, on or before Monday, the 11th day of January, 1869. In the event of a failure to comply with the terms hereof within the time specified by the party of the second part, the said party of the first part shall be released from all obligation in law or equity to convey said property, and said party of the second part shall forfeit all right thereto, and shall also forfeit his $500 which he has paid on the execution of these presents. And the said party of the first part, on receiving such payment of $13,000, at the ¿time and in the manner above mentioned, agrees to execute and deliver to the said party of the second part, or to his assigns, a good and sufficient quit-claim deed, and give possession of the premises thirty days after the day of the payment of the said $12,500.

> *437“ In witness whereof, the parties to these-presents have hereunto set their hands and seals, the day and year first above written.

> “Abel Stearns.

> “Edgar M. Morgan.”

The complaint alleges that Morgan paid the $500 in hand, according to the terms of the agreement; that he has been and is ready and willing to perform it upon his part; that on Monday, January 11, 1869, he tendered to Stearns the balance of the purchase money and requested the latter that he should execute to him a deed; but that Stearns refused to ,do so; that within thirty days after January 11th he demanded of Stearns the possession of the premises, and again offered to pay the $12,500, balance of purchase money, but that Stearns still refused, and retains the title and possession of the premises, besides the $500 which was the advance payment. It is also alleged that since January 11, 1869, the value of the premises has greatly enhanced, and that they were then worth $23,000, and that the plain-' tiff has sustained damage to the amount of $15,000, etc.

The answer denies that there has been any refusal to execute a conveyance of the character mentioned in the agreement, and avers that the defendant- has been always ready and willing to execute and deliver to the plaintiff a quitclaim conveyance, and which, he insists, is the character of the deed to be executed, according to the tenor and effect of the contract of sale.

It also denies that the premises are worth $23,000, or more than $13,000, or that plaintiff has sustained any damage by reason of the breach by the defendant.

The cause was tried before the Court, without the intervention of a jury, and the plaintiff recovered judgment for $8,000 and costs.

From the judgment and an order denying his motion for a new trial the defendant brings this appeal.

No request was made that findings should be filed, and the judgment rests entirelyupon the findings implied by law.

It is first objected that the conveyance which the plain*438tiff tendered to Stearns for execution was not a quit-claim deed merely, but a deed of grant, bargain and sale, importing, of course, tbe statutory covenants, and was prepared for tbe signature of tbe wife of Stearns as well as for that of Stearns bimself,

■ Tbe draft of tbe deed presented to Stearns for execution was produced on tbe trial, and appears to bave been prepared in tbe manner stated in tbe objection. There is no doubt tbat it is not sucb a deed as tbe contract of sale bad provided for. But tbe objection will not avail tbe defendant, for several reasons. Tbe first is, tbat be made no objection to it, at tbe time, on these or any other grounds. If be bad made sucb an objection, the-plaintiff might bave prepared another in accordance with tbe exact terms of tbe contract in these particulars. A party who intends to object to tbe proposed conveyance, under sucb circumstances, will be held to do so at tbe time of its presentation, or be may take time to consider it, or to consult counsel/ but be cannot be permitted to retain tbe proposed deed without objection, or reservation of tbe right to object, and after-wards, when sued for a breach, set up tbe objection for tbe first time in answer to tbe action. It may be said tbat tbe evidence as to what Stearns said and did in this respect was conflicting. Even if it be so, a finding against him .upon tbat point must be implied in support of tbe judgment.

But another answer to tbe objection is that Morgan was not bound to do more than tender tbe purchase money; be was not bound to prepare a deed of conveyance; tbat was tbe business of Stearns.

Tbe English rule, by which tbe purchaser is required to prepare tbe necessary conveyance, bad its origin in circumstances peculiar to land titles in England, and is believed never to bave obtained in any of tbe United States, except, perhaps, in tbe State of Arkansas.

It appears tbat on tbe 13th day of January, 1869, tbe witness, Eorbes, did prepare for Stearns and at bis request, a a quit-claim deed in accordance with tbe terms of tbe contract, and tbat Stearns affixed bis signature to it, but never *439tendered it to Morgan, tbongb tbe latter, some twenty-eight days after the date of the Forbes deed, again made a demand on Stearns for the possession of the premises, to which demand he made no reply whatever. That would have been an appropriate time to offer the qnit-claim deed which he had caused Forbes in the meantime to prepare, if he had intended to act in good faith in the premises.

It is unnecessary to examine to what, if any, extent the rule of damages for failure to convey land is affected by the good' faith of the defendant appearing. In this case it clearly appears that the defendant has the title to the premises — that his qnit-claim deed would be sufficient to convey it to the purchaser, and that he willfully refused to comply with the terms of the agreement to convey merely because the land has in the meantime considerably appreciated in value.

Mere nominal damages do not belong to such a case. There is nothing in the other points, and'the judgment is affirmed.

Sprague, J., expressed no opinion.