Gouldin v. Buckelew

4 Cal. 107 | Cal. | 1854

Mr. Justice Heydeneeldt

delivered the opinion of 'the Court.

Mr. Ch. J. Murray concurred.

This case may be determined by a simple solution of the question — What was the vendor’s relation to the land after his sale? According to sound principles of equity, sustained by a long current of decisions, he was the vendor with an equitable lien upon the land for the purchase money, and holding the legal title as a security for the enforcement of his lien. (See the case of Haley v. Bennett, 5 Port. 469, where the question is fully examined; also, Chapman v. Chunn, 5 Ala, 397.)

The vendor in this case had severrl remedies: He might have recovered possession of the premises, in which case, he could only have held until the rents and profits had paid the purchase .money, and then equity would have compelled him to convey to the purchaser.

He might have enforced his lien in a court of equity, and obtained a decree to sell the land, in which case, if the sale had produced more than the purchase money, the surplus would belong to the vendee.

But, under the contract, he had the power of [112] selling, without *the interposition of judicial authority, and having selected this mode as most convenient, can it be reasonably contended that it gives him any greater rights, than if his lien had been enforced by a court of equity ?

It is urged, however, that he did not pursue the plan of sale agreed on in the bond; that, instead of selling at public sale, after advertisement, he treated the contract as a nullity, and sold at private sale. This is certainly an argument against him. The vendee might very well complain of this proceeding as a breach of contract, and might recover for such breach, if he could affirmativey show that the land would have sold for a greater sum, if the mode of selling pointed out by the written obligation had been pursued.

The argument that the length of time which elapsed without payment of the purchase money demands the inference that the contract had been abandoned, is of no force. It was within the power of the vendor to have rendered the time as short as he chose, by a prompt enforcement of his lien.

The decree is affirmed.