Opinion
Docket No. Sac. 4543.
July 24, 1933.
APPEAL from a judgment of the Superior Court of Tuolumne County. J.T.B. Warne, Judge. Affirmed.
The facts are stated in the opinion of the court.
Kelby Lawson, Clyde C. Triplett, D.A. Maclean and Rowan Hardin for Appellants.
Wm. W. Kaye and Kaye Johnstone for Respondents.
The record presents a judgment-roll appeal by defendants from a decree of foreclosure in favor of plaintiffs upon certain mining property in Tuolumne County. The sole question presented is whether the complaint fails to state a cause of action by the omission therefrom of appropriate allegations averring the performance of certain precedent and concurrent conditions and covenants found in the agreements of the parties, which are exhibits to the complaint, and in which is contained the mortgage in question.
[1] The answer to the contention is that the covenants and conditions alluded to are neither precedent nor concurrent with the money obligation sued upon. The obligation to pay is definite and certain. The obligation to surrender certain documents and other property, and to procure reconveyance under a deed of trust, was to follow only upon a precedent act of appellants, to wit: the procuring by them of an abstract of title showing ownership of title to the mining property in appellant corporation (subject to certain specified exceptions). Until this was done no obligation existed on the part of respondents.
Thus we have a case where an independent covenant is sued upon and no relief is asked concerning covenants which are mutual or concurrent. The complaint, therefore, is not defective ( Fresno Canal etc. Co. v. Perrin, 170 Cal. 411 [ 149 P. 805]); hence the conclusion above announced.
Langdon, J., Curtis, J., Thompson, J., Seawell, J., and Waste, C.J., concurred.