| Cal. | Jan 15, 1852
delivered the opinion of the Court. The defendants were the heirs of James Scott; and in making the contract which has given rise to this suit, one Fisher was their agent. Fisher, as agent, contracted with the plaintiff to sell the lots in question, “by the same title by which James Scott held them at the time of his death.” This language is so specific as to have put the plaintiff on his guard; and is just as forcible as the legal maxim of caveat emptor. This renders it unnecessary to inquire into the title which was acquired by James Scott, in his life time. It is sufficient that the fact is found by the Court below, that the conveyance of such title placed the plaintiff into the actual possession of the premises.
The question raised, that the contract was made by the plaintiff as agent of Mary Catharine, or of other associates, amounts to nothing; because it is alleged in the complaint, and admitted by the answer, that as far as Mary Catharine is concerned, her name was only used for some purpose which may have been pro
The deed made by Fisher, was improperly executed; but it bears on its face the evidence that this impropriety was the result of mistake or ignorance, and negatives the idea of an intention to defraud or deceive. He signs the deed with his own name, describing himself as “ attorney of the heirs of James Scott.” This was certainly irregular and informal. But it is found to be the fact, that Fisher had an actual and Iona fide power from the heirs of Scott to sell the lots; that in pursuance of that power, he did sell; and therefore, if the deed which he gave the plaintiff was inoperative as a deed, yet it was certainly sufficient to serve as “a note or memorandum in writing,” of the agreement between the parties: and when to this is added, that it was accompanied by the delivery of the possession, there was unquestionably sufficient evidence for a court of equity to have decreed a specific performance of the contract, and to have required the heirs of Scott to convey; or, if they were beyond the reach of the Court, then to have made a decree, divesting them of the title, and vesting it in the plaintiff.
The facts found, however, show that there was no necessity at any time, to drive the plaintiff to his remedy for specific performance :—if that were so, he might, with equal right, claim as his remedy, the rescission of the contract. It seems, that after the defective deed of Fisher was executed, the plaintiff requested him to have executed other deeds, directly by the heirs of Scott, and to another person, designated by the plaintiff. To this proposition a ready assent was given; and the respondents, in accordance with the directions of the plaintiff, executed the deeds, and tendered them to the plaintiff, on the simple condition, that he should pay the balance of the purchase-money, which was then-due, or secure its payment, by a mortgage on the property; and this the plaintiff failed or refused to do.
It is a well settled rule, that the vendor of real estate has an equitable lien on the land sold for the payment of the purchase-
It is unnecessary to decide anything as to the effect of the decision of this Court in the case of Fisher v. Salmon. That case stood upon the facts then presented to the Court, which were substantially different from those which have been eliminated in the case before us.
The plaintiff cannot be permitted to come into a court of equity, and have relief by the rescission of the contract, against the wishes of the respondents, when the only obstacle to its completion and fulfilment, was caused by his own default, and when the other party is entirely without blame.
Let the judgment be affirmed.