124 Cal. 255 | Cal. | 1899
Action to foreclose the rights of a vendee under a contract for the purchase and sale of land. PlaintiE had the decree, from which, and from an order denying defend
*257 “ ‘Service of the within demand and notice is hereby admitted on behalf of all the parties to whom it is addressed.
“ ‘(Signed) HENRY THOMPSON,
“ ‘Attorney at Law/ ”
On February 31, 1895, said Tilden, as attorney for plaintiff, made a tender of deed to the defendants through said Thompson in manner similar to the service of notice last above mentioned.
As conclusion of law the court found that “Brander should perform his contract within sixty days, or be foreclosed of his rights under the same. The plaintiff’s title should be quieted against the other defendants.” Decree was entered accordingly
1. Appellants claim that, as the contract had passed to the defendants other than Brander, the sixty-day limitation in which to make payment ought to have run to them and not to Brander. The promise to pay was by Brander alone. The other defendants assumed no liability to plaintiff -and none was enforceable against them by plaintiff. They were made parties, and as assignees of Brander could have fully protected themselves by asking that they be permitted, as Brander’s assignees, to bring the money into court and make payment within the time fixed by the court. They made no such request, and no cause appears either from the answer or the stipulated facts entitling them to be treated as principal debtors or vendees. Brander’s obligations to plaintiff remained undischarged after his assignment to the other defendants. (Civ. Code, sec. 1457.) These latter defendants have no cause for complaint that the sixty-day privilege to pay for the property and take a deed d'id not in terms include them. (Truebody v. Jacobson, 2 Cal. 269.)
2. Appellants contend that the decree should have ordered the property sold in the event of failure to redeem within sixty days, as in the ease of a mortgage. Appellants misconceive the purpose of the remedy. The course pursued in this case was in harmony with the well-settled practice in this state in like cases. (Sparks v. Hess, 15 Cal. 186; Keller v. Lewis, 53 Cal. 113; 56 Cal. 466; Fairchild v. Mullan, 90 Cal. 190; Southern Pac. R. R. Co. v. Allen, 112 Cal. 455; Rayfield v. Van Meter, 120 Cal. 416.)
3. It is objected that the decree gives plaintiff the land and
4. Finally, it is urged that there was no tender of deed and demand of payment made by plaintiff. The stipulated facts clearly show both tender and demand. Mr.. Thompson, who acknowledged service of these notices and entered into the stipulation of facts on behalf of defendants, is the same Mr. Thompson who appeared in the action as a codefendant and as attorney for all of them. We think the trial judge had the right to presume authority in Mr. Thompson to acknowledge service; and, furthermore, to hold that his stipulation as to the facts was a ratification of his previous acts. It is true that the answer denies a tender and demand, but the stipulation was entered into long after the answer was filed, and admits that in this particular the allegations of the complaint are true and that the allegations of the answer are untrue.
We discover no error and advise that the judgment and order be affirmed.
Haynes, C., and Pringle, C., concurred.
Henshaw, J., Temple, J., McFarland, J.