
    [No. 11318.
    Department One.
    August 25, 1886.]
    OLIVER SANDERS, Respondent, v. MARY LANSING, Appellant.
    Contract for Sale of Land—Payment of Purchase Price—Failure of Title. — Money paid by the vendee as part of the purchase price under a contract for the sale of land may be recovered if the vendor did not have the title at the time the contract was made, nor acquire it afterwards.
    Appeal from a judgment of the Superior Court of Sacramento County, and from an order refusing a new trial.
    The facts are stated in the opinion of the court.
    
      T. J. Clunie, and McKune & George, for Appellant.
    
      Freeman, Johnson & Bates, for Respondent.
   Myrick, J.

The defendant agreed with plaintiff to sell to him a tract of land at a stipulated price per acre, possession to be given on full payment. Plaintiff paid five thousand two hundred dollars, part of the purchase price. Defendant having failed to convey, this acti/ was brought to recover the money paid. At the time of making the contract, defendant was not in condition to give title, the title being in other parties, nor has she since acquired the title. The defendant can give neither title nor possession. Under such circumstances, the plaintiff is entitled to recover the money paid.

Judgment and order affirmed.

Ross, J.; and McKinstry, J., concurred  