112 Cal. 455 | Cal. | 1896
Lead Opinion
This is an appeal from the judgment upon the judgment-roll.
The action is to compel the payment of moneys alleged to be due under contracts for the purchase of lands, and, in default of payment, to foreclose defendant’s rights under the contracts, and for general relief. The action is on more than one contract, but they are alike in terms, and one will serve as a • type of all. Plaintiff agreed to sell, and defendant to buy, a certain piece of land. At the date of the contract defendant paid one-fifth of the purchase price and one year’s interest upon the unpaid portion, and agreed to pay the same interest annually in advance until the completion of the purchase, or the termination of the contract, together with all taxes and assessments levied upon the land, and to pay the remainder of the purchase price “on or before the first day of February, 1893.” Defendant is given the right of immediate possession of the land, and upon the performance of all the conditions of
This action was brought upon default of defendant in paying the second, third and fourth years’ installments of interest. It was commenced before the expiration of the five-years’ limitation for the payment of the balance of the purchase money, but was brought to trial and decided after the lapse of that period. Defendant, by answer, denied title in plaintiff, and by cross-complaint alleged false representations by plaintiff of its title, injury to himself therefrom, and concluded with an offer of rescission and demand for a return of the moneys paid by him. The findings are in favor of plaintiff, ex
The only question really involved in the case is as to the construction of the contracts sued upon. It is contended by the defendant that he was under- no obligation to purchase the land or to pay the remainder of the purchase price, unless the plaintiff should, within the five years, obtain a patent for the land; and that, as the plaintiff had failed to obtain a patent within that time, and as the action was not tried until after the expiration of that time, the defendant was entitled to a rescission of the contract. But clearly the contracts will not bear any such construction. The defendant contracted unconditionally to pay the remainder of the purchase 11rice “on or before” a certain day named, and to pay interest annually in advance on such remainder; but the plaintiff contracted to convey to defendant only “upon the receipt of a patent,” and was to repay the money only “in case it be finally determined that patent shall not issue.” The defendant, therefore, was not entitled to terminate the contract, or to require a repayment of the moneys paid, until the question of the issue of a patent to the plaintiff should be “finally determined.” The findings state that proceedings are now pending in the United States land department for the issue of patent to the plaintiff, and that it has not been finally determined that such patent shall not issue. At the time, therefore, at which defendant contracted to pay the balance of the purchase price, plaintiff was not in default, nor was it in default at the time of the trial.
It will thus be seen that, under these contracts, the times fixed for the payment by defendant of the balance of the purchase price, and the installments of interest on that balance, might all arrive before the happening
The defendant further contends that the contracts were void, ab initia, for want of mutuality or consideration, or amounted at most to mere offers to purchase on
Defendant also claims that the bringing of this action was a rescission of the contracts, which entitled him to a return of the money already paid. But since, 'under the contract, plaintiff was entitled absolutely to receive the money at the times agreed upon, and to have the benefit of its use until the final determination of the question of the issuance of patent, it was entitled to enforce the collection of the money by this action, and in the event of a failure to pay to have defendant foreclosed of bis rights under the contracts. (Keller v. Lewis, 53 Cal. 118; Fairchild v. Mullan, 90 Cal. 194; Hansbrough v. Peck, 5 Wall. 506.) The decree gave the defendant the alternative of paying within six months, or suffering foreclosure; and this was in accordance with equity. It may be, in view of the fact that the action was tried after the expiration of the time for the
It follows from these considerations that plaintiff is entitled to the relief granted by the court below, and that the judgment must be affirmed.
It is so ordered.
McFarland, J., Garoutte, J., and Harrison, J., concurred.
Dissenting Opinion
dissenting.—I dissent, under the conviction that the interpretation given to this contract in the opinion rendered by Department Two is proper and sound. It was there said (Southern Pacific R. R. Co. v. Allen, 40 Pac. Rep. 752): “Plaintiff agreed to sell, and defendant to buy, a certain piece of land. At the date of the contract defendant paid one-fifth of the purchase price and one year’s interest upon the unpaid portion, and agreed to pay the same interest annually in advance until the completion of the purchase or the termination of the contract. The time of payment for the unpaid part of the purchase price was ‘on or before the first day of February, 1893’; that is to say, ■within five years from the execution of the contract. Upon performance by defendant of the conditions of his contract he was entitled: 1. To take and hold possession of the land; and 2. To receive a deed for the same upon demand, and after payment of the remaining four-fifths of the purchase price, which deed plaintiff agreed to make ‘after the receipt of a patent therefor from the United States.’ The contract proceeds: ‘It is further agreed between the parties hereto that the party of the first part claims all the tracts hereinbefore described as part of a grant of lands to it by the Congress of the United States; that patent has not yet issued to it for said tracts; that
There is no doubt but that in a contract for the sale of land the covenant to convey and the covenant to pay may be made independent, but there is likewise no doubt but that the general rules of interpretation require these covenants to be construed as interdependent, unless the contrary is made clearly to appear upon the face of the contract, and where doubt arises as to the intent of the parties that doubt should be resolved by a construction holding them to be interdependent—1. As expressing the meaning most probably intended by the parties; and 2. As being the interpretation consonant with the spirit of equity and fair dealing. The seller ought not to be compelled to part with his property without receiving the consideration, nor the purchaser to part with his money without an equivalent in return.
In Hill v. Grigsby, 35 Cal. 656, this court said: “ It is very correctly said in Bank of Columbia v. Sagner, 1 Pet. 455, that ‘in contracts of this description the undertakings of the respective parties are always considered dependent, unless a contrary intention clearly appears’; and the reason assigned, as well as the rule, would be applicable here were the words of the covenant of doubtful import. ‘A different construction would, in many cases, lead to the greatest injustice, and a purchaser might have payment of the purchase money enforced upon him, and yet be disabled from procuring the property for which he paid it.’ The authorities in support of these principles are very numerous, and there is a greater degree of uniformity among -them than is usual on a question presented, as this has been, in so many different aspects.”
A man purchases real property for purposes of improvement and permanent ownership, or for barter and sale. He may, and frequently does, pay the purchase
The lapse of five years without issuance of a patent is intended to be, so far as the rights of the parties to this contract are concerned, in and of itself a final determination that the patent is not to issue. So construed the covenants are clearly dependent.
The one interpretation manifestly exposes the defendant to such untoward danger and loss that it is inconceivable that a man of ordinary intelligence would have bound himself by it; the other expresses a fair business contract, such as any two individuals might enter into.
In the prevailing opinion it is said that the contract clearly will not bear the latter construction. That it is the equitable construction is not and cannot be questioned. Upon the other hand, there should be the clearest and most satisfying language in the contract to warrant the interpretation given it. That language I am unable to find, and if there be an existing doubt, under all the authorities and under the law of this court
Temple, J., concurred.
Dissenting Opinion
dissenting.—I dissent, but upon a different ground from that stated by Justice Henshaw. As to the construction of the contract, I concur in the views of the majority, but I do not think that the breach of this particular kind of a contract of sale gives the vendor the right to go into equity to claim specific performance, or to foreclose the right of the purchaser. In ordinary contracts for the sale of land the vendor has the right either to rescind or to foreclose for failure of the vendee to make deferred payments, because in ordinary contracts of sale the vendor is able to perform the contract on his part by making a conveyance. But when, as in this case, the vendor is not ready to convey, and may never be able to do so, I think he should be limited to rescission or to his action to recover the installments due, and that he has no right to claim the relief awarded by this judgment.
Rehearing denied.