Field, C. J. and Baldwin, J. concurring.
This is an action to recover a balance of the purchase money for certain real estate in the city of Sacramento. The suit is upon an agreement, the purport of which is that the defendant will pay on receiving a valid and perfect title to the property. The general provision to that effect is not restricted by the clause designating particular persons from whom conveyances or relinquishments should be obtained. The intention was that all clouds and incumbrances should be removed before the defendant could be called upon to pay. The findings of the Court show very clearly that this condition of the agreement has not been complied with. In fact, they show that the legal title has never passed; that the person from whom the defendant purchased had at most but an equitable interest. His claim was acquired under a judgment of foreclosure; and it appears that the holder of the title was not a party to the foreclosure suit. Of course, as against the latter, the judgment was a mere nullity. The title is still outstanding, and must be obtained either by negotiation or by the usual process of foreclosure and *668sale. The suit brought to set aside the judgment determined nothing but the validity of the mortgage. The position of the respondent upon the question of time is undoubtedly correct.
Judgment reversed, and cause remanded for a new trial.