This action was brought by Raleigh P. Hooe, as assignee of his wife, Etta Mae Hooe, against defendant Daniel O'Callaghan, to recover $500, alleged to have been received by defendant from E. J. Campion, the intervener, for the use of Mrs. Hooe.
At the conclusion of the introduction of evidence, the court, being of opinion that no issue or question or fact was presented for determination, instructed the jury to return a verdict for Campion, the intervener, and against the plaintiff and defendant. This was done, and in due time a judgment was accordingly entered. This is an appeal by plaintiff from an order denying his motion for a new trial.
The undisputed facts of the case are briefly as follows: On April 11, 1906, Etta Mae Hooe, through her agent, authorized in writing Daniel O'Callaghan, a real estate agent, to sell the real estate described in the complaint for the sum of $10,000 net. On April 14, 1906, O'Callaghan procured Campion, the intervener, to make an offer of $10,500 for the land, and to deposit with him $500 on account of the purchase price, with the understanding that Campion was to have thirty days to examine the title, and if the title was found defective, and could not be perfected within sixty days, the deposit was to be returned. On April 17th following, O'Callaghan informed Mrs. Hooe, through her agent Raleigh P. Hooe, of said offer by Campion and of its terms, and she accepted it in writing, and agreed, upon receipt of $10,000, to convey the property to Campion with perfect title, free and clear of encumbrances. On the next day the greater part of the records in the office of the recorder of the city and county of San Francisco (where the property was situate) were destroyed by fire.
The evidence further showed that O'Callaghan was employed as exclusive agent of the assignor of the plaintiff to sell her property; that Campion was at all times ready, willing and able to purchase said property upon the conveyance to him of the aforesaid title.
Upon these facts we are of opinion that plaintiff had no right to the $500 deposited, and that the action of the trial court in directing the jury to return a verdict in favor of Campion was correct.
It was impossible for Mrs. Hooe, by reason of the destruction of the public records, to convey to Campion a good or *Page 570 perfect record title to the property. (Turner v. McDonald,76 Cal. 180, [9 Am. St. Rep. 189, 18 P. 262]; Goldstein v.Hensley, 4 Cal.App. 444, [88 P. 507]; Easton v. Montgomery,90 Cal. 307, [25 Am. St. Rep. 123, 27 P. 280]; Benson v.Shotwell, 87 Cal. 49, [25 P. 249]; Gwin v. Calegaris,139 Cal. 384, [73 P. 851]; Calhoon v. Belden, 3 Bush (Ky.), 674; 29 Am. Eng. Ency. of Law, 2d ed., 607; Title Document R.Co. v. Kerrigan, 150 Cal. 289, [119 Am. St. Rep. 199,88 P. 356].)
In this last-mentioned case the court said: "The registration of titles has become so thoroughly imbedded in our system of dealing with lands that a title which cannot be traced and established by some form of public record is practically unmerchantable. . . . In this county the system of registration has become so completely established that the courts can take judicial notice of the fact that in the great majority of cases parties dealing in real estate rely for the proof of their titles upon the chain of title that will be disclosed by an examination of the records. . . . It is also a matter of common knowledge that in the city and county of San Francisco at least, if not in the counties, the disaster of April last worked so great a destruction of the public records as to make it impossible to trace any title with completeness and certainty."
The case of Calhoon v. Belden, 3 Bush (Ky.), 674, is also particularly in point, for there the question of title arose, as here, from a destruction of the public records. The parties to that action entered into an agreement for an exchange of houses and lots, to be consummated in November, 1862. Before the arrival of that date (the parties having in the meantime mutually delivered possession of their respective houses and lots) the house obtained from Calhoon was destroyed by fire, and later, in July, 1863, General John Morgan's Confederate army destroyed by fire the clerk's office in Marion county and all its records and archives. Thereafter Calhoon sought a specific execution of the contract, and Belden claimed a rescission. The court, in part, said: "If, in fact, Calhoon's title be perfect, Belden is not bound to accept his conveyance without such proof of it as will arm him with the recorded means of vindicating its validity in after times; and there is no such proof, or even allegation, in this case. He cannot, therefore, be entitled to a specific execution of the contract, but is equitably bound to take back the damaged lot, and *Page 571 restore to Belden that which was exchanged for it. As the contract implied that perfect titles were to be interchanged and guaranteed, a rescission is the inevitable consequence in equity."
In the case at bar it is contended by plaintiff that Campion forfeited the $500 deposited. There is no satisfactory evidence in the record to sustain this contention. On the contrary, the record shows that Campion was ready, willing and able to pay the purchase price of the property upon the conveyance to him of good title. It is true that he gave Mrs. Hooe no notice of the condition of the record; but as it was impossible for her to perform her part of the contract by conveying to him a perfect title, such notice was unnecessary, and the giving of it would have been an idle and useless act (Maupin on Merchantable Title to Real Estate, secs. 87, 240), which the law does not require. (Civ. Code, sec. 3532) She could not have maintained an action for the purchase price, and we think in this action she is not entitled to judgment for the amount of the deposit. In Maupin on Merchantable Title to Real Estate, at section 238, it is said: "It is frequently provided in contracts of sale that the purchaser shall forfeit his deposit if he fails to comply with his contract within a specified time. The vendor cannot insist upon this forfeiture if he be unable to perform the contract on his part for want of title. In such a case there is a complete failure of the consideration, and the vendor has no more right to keep the purchaser's money than he would to compel specific performance of the contract."
Finally, Mrs. Hooe not only did not have a record title to the property, but she made no tender of a deed thereto to Campion; and as the covenants of this contract were mutual and dependent, it was necessary that she should have made such a tender before commencing this suit. When the covenants of a contract are mutual and dependent, neither party thereto can put the other in default without showing a performance or offer to perform on his part. (Dennis v. Straussburger, 89 Cal. 583, [26 P. 1070]; Maupin on Merchantable Title to Real Estate, sec. 88; 29 Am. Eng. Ency. of Law, 2d ed., 646.)
The order is affirmed.
*Page 572Hall, J., and Cooper, P. J., concurred.