Summary
In Willis v. Wozencraft, 22 Cal. 607, this court said: "A mere equitable title to land, if it is of such a character as entitles the holder to possession in equity, is a sufficient defense under our system of practice to an action for the possession, brought even by the holder of the legal title."
Summary of this case from Doherty v. CourtneyOpinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing 22 Cal. 608 at 618.
Appeal from the First Judicial District.
The following is the instrument executed March 20th, 1858, by Deputy to Wozencraft, defendant:
" Know all men by these presents, that I, William C. Deputy, of the County of San Bernardino and State of California, party of the first part, am held and firmly bound unto Oliver M. Wozencraft, of the county and State aforesaid, party of the second part, in the sum of one thousand and eight hundred and seventy-five dollars to be paid to said party of the second part, his heirs or assigns, to which payment well and truly to be made, I do hereby bind myself, my heirs, executors, and administrators, and each of them, firmly by these presents. The condition of this obligation is such, that whereas the said party of the second part having this day contracted with the party of the first part to purchase of him an undivided half of all that piece or parcel of land lying and being situate in the City and County of San Bernardino and State of California, and known on the official map of said city, recorded in the office of the Recorder of said county, as lots one (1,) two (2,) three (3,) four (4,) seven (7,) and eight(8,) in block eighteen, and is this day in peaceable possession of said premises in common with said party of the first part, with the full right to an undivided half of all the rents and profits of said premises from and after this date, and has for the purchase thereof executed and delivered to the party of the first part his certain promissory note, bearing even date herewith, for the full sum of one thousand eight hundred and seventy-five dollars as the price of said land, the said note being due and payable as follows, to wit, twelve months after date. Now, on the payment of the said note, principal and interest, and one-half of all the taxes assessed on said premises from and after this present date by the said party of the second part, his heirs or assigns, to the said party of the first part, his heirs, executors, administrators, or assigns, if the said party of the first part shall and does make, execute, and acknowledge or cause to be a good and sufficient deed, conveying and confirming unto the party of the second part, his heirs and assigns, an absolute and indefeasible estate of inheritance in fee simple, clear of all incumbrances, with general warranty, of, in, and to the said one undivided half of said lots one (1,) two (2,) three (3,) four (4,) seven (7,) and eight (8) of land heretofore described with the appurtenances, then the above obligation to be void, or otherwise it shall be and remain of full force and virtue.
" In witness whereof, I have hereunto set my hand and seal this twentieth day of March, in the year one thousand eight hundred and fifty-eight.
W. C. Deputy."
This instrument was duly acknowledged, and on the third day of May, 1858, recorded in the office of the County Recorder.
The Court, by whom the cause was tried without a jury, found as facts, among others, that Deputy was at the time of the execution of the above instrument the owner in fee of the premises; that he subsequently conveyed to Shackelford and he to plaintiff; that about the middle of September, 1858, the plaintiff entered into and occupied certain rooms in one of the buildings upon the premises, and " continued in possession of the same until February, 1859; " that defendant " was in possession on the twentieth day of March, 1858, and has been in possession thereof since said date, is now in possession thereof, holding adversely to the plaintiff, and derives true title to an undivided half of the premises."
All other material facts are stated in the opinion. Plaintiff had judgment in the Court below, and defendant appeals.
COUNSEL:
The bond from Deputy to defendant was more than a mere agreement to convey: it was an admission or acknowledgment of the right of possession, and its operation was to convey the right of possession. It is true that the right to a conveyance was dependent upon the payment of the purchase money, but the right of possession was not, that was independent and could only be defeated by enforcing the equitable lien for the purchase money, and having a judicial sale of the premises. The parties have made their contract. Legally, one of the conditions which induced defendant to enter into the agreement was the unconditional conveyance of the right of possession; this right could not be forfeited by the non-payment of the purchase money, because there was no such stipulation. The agreement being recorded, was notice not only of the conditional undertaking to convey, but also of the unconditional rightof possession which it particularly recites. Besides, the vendor has not complained of the non-payment of the purchase money, and indeed his sale to the plaintiff took place six months before the purchase money from the defendant was due. The defendant, therefore, has under his contract the legal right of possession, and cannot be ejected. The plaintiff may have the legal title, but could only take it subject to defendant's right of possession to one-half; and as the plaintiff sued for the whole, and shows only a right to recover an undivided half, her action must fail, and the defendant is entitled to judgment, at any rate she can only be entitled to judgment for one-half.
S. Heydenfeldt, for Appellant.
Stanly & Hays, for Respondent.
I. The agreement between Deputy and defendant was clearly inadmissible, it being foreign to the issue raised by the answer. The first rule governing the production of evidence is, " that the evidence offered must correspond with the allegations, and be confined to the point in issue." (1 Greenl. Ev. sec. 51; Cowan v. Price, 1 Bibb, 175; Morehead v. Ratler, Id. 317; 2 Id. 4, 7.)
II. Conceding, for the purposes of the argument, that the bond was admissible, defendant did not show, nor even attempt to show, that he had complied or offered to comply with the condition precedent which he was to perform in order to entitle him to a conveyance, or to enable him to obtain any benefit from the agreement.
The instrument by its very terms makes " the payment of the note, principal and interest, and one-half of all the taxes assessed on said premises," a positive condition to be performed before Wozencraft was entitled to a conveyance; and the rule is well settled that a party seeking to avail himself of a contract containing such a condition is entitled to no relief " unless he has shown himself ready, desirous, prompt, and eager" to perform the condition.
It is said that to enable Mrs. Willis to succeed in this action she must have been the owner of the note, and must have demanded payment and been refused. We respectfully submit, that the rule of law is directly the converse of that stated, and this Court has so expressly decided.
In Knowles v. Shreve , 17 Cal. 275, where the bond was almost identical with the one under consideration, this Court held, that it was necessary to prove a demand by the obligees upon the obligor, tomake the deed and say: " the weight of authority is, that a demand must be made." And in Fuller v. Hubbard & Williams, 6 Cowen, 13, it was decided that where one agrees to convey land on the payment of money, the vendee must not only tender or pay the money, but he must demand a conveyance.
III. While it is true that the vendee is treated in equity as the equitable owner of the land, but this is only for some purposes, (such as devise, descent, specific performance, etc.,) but not for any purpose relating to any question fairly involved in this case. Equity does not regard him as entitled or as having any right to the possession, nor would equity tolerate him in possession for a moment, unless it were with the assent of the vendor. A simple contract to convey at some future time, silent about possession, gives the vendee no right to enter into the possession or intermeddle with the land in any way. (Suffern v. Townsend, 9 John. 35; Spencer v. Tobey, 22 Barb. 260; Cooper v. Stower, 9 John. 331; Kellogg v. Kellogg, 6 Barb. S.C. 116; Talbot v. Chamberlain, 3 Paige's Ch. 219.)
It is true, that the contract in the case at bar does give the right of possessionto the vendee, but that right only extends and was only intended to extend until the purchase money became due, when if not paid, the possession reverted to the vendor. This is the fair interpretation of the contract, and the only one the law can put on it. (See Wright v. Moore, 21 Wend. 230; Mitchell v. De Roche, 1 Yates, 12.)
That an action for rents and profits or use and occupation will not lie against a vendee is undisputed, as the relation of landlord and tenant can only exist by express or implied agreement. The vendee entering with the consent of the vendor, at most, only establishes a quasi-tenancy at will, and the moment he neglects to comply with his contract he can be treated as a trespasser. (See Smith v. Stewart, 6 John. 46, where the doctrine is thoroughly examined; all the New York cases on this point will be found collected in Jackson v. Miller, 7 Cow. 747.)
At common law a tenant at will was not entitled to notice to quit. Arguello v. Edinger , 10 Cal. 159, simply decides that the taking possession by a vendee, under a parol agreement to purchase, is a sufficient part performance to take the contract out of the operation of the Statuteof Frauds. The case of Wright v. Moore, 21 Wend. 230, is in point, and settles the law applicable to this case to be as claimed by respondent.
It has been admitted all through this case, that the right to a conveyance depended upon the payment of the purchase money. How can it reasonably be said, that after the time of payment had elapsed, and no payment had been made, that the appellant could rightfully continue in possession? Possession is the only value that title gives. According to the position assumed the defendant was properly in possession after non-payment with a right to continue such possession. What then becomes of plaintiff's title? Is it to be a mere barren title producing no fruits? Giving the right of possession to the defendant would be virtually divesting the plaintiff of her title; she would retain the shadow, while the defendant enjoyed the substance. He who seeks equity must do equity, is a familiar maxim; and the appellant not having offered to pay the note given for the purchase money, is not entitled to the equitable interposition of the Court. While it is true that equity, under certain circumstances, treats things as done where they are only agreedto be done, yet it is equally true " that nothing is looked upon in equity as done but what ought to be done," and the appellant not having complied with his agreement cannot ask, nor ought the Court to consider the conveyance as made.
JUDGES: Crocker, J. delivered the opinion of the Court. Norton, J. concurring.
OPINION
CROCKER, Judge
On petition for rehearing, Crocker, J. delivered the following opinion. Norton, J. concurring:
The questions involved in this case are important, and as the counsel for the plaintiff in their petition for a rehearing have referred to some authorities not cited before, it may be proper to notice them.
Whether, in equity, a vendee, in a simple contract to convey at some future time, which is silent about the possession, has a right to take and hold possession before the conveyance, is a question not before us, as the contract in this case specially gives him the right of possession. But it is now urged that this right of possession extends only to the time that the purchase money became due, and if the money was not then paid, the right of possession in the vendee ceased, and the same revested in the vendor. In this the plaintiff is in error. Such are not the terms of the contract, nor is such the proper equitable construction of it. There are no words in the agreement thus limiting the right of possession vested in the vendee. In support of the position that the law so construes it, the plaintiff cites us to the cases of Wright v. Moore, 21 Wend. 230, and Mitchell v. De Roche, 1 Yeates, 12.
The case in Wendell was an action of ejectment at law, and therefore governed purely by legal principles. The agreement of the vendor contained a covenant that the vendee might " have quiet and full possession of the said premises at any time after the payment" of the first instalment of the purchase money. The Court say that " though the defendant's equitable title may be clear and perfect, its enforcement belongs exclusively to chancery." But even without that remark the Court based its judgment entirely upon the legal principles governing such cases, and it does not, therefore, govern the present case. The case in Yeates is not in point, as it does not appear that there was any agreement on the part of the vendor that the vendee should take and hold the possession. That was an early case in Pennsylvania, in which these questions do not seem to have been fully considered, and it is substantially overruled by the later decisions of that Court referred to in our former opinion.
The question whether a demand and notice to quit is necessary in a case of this kind was not presented by the defendant as a point in the case, and the reference to it in our former opinion was not for the purpose of settling or determining it, but merely as showing how the rights of vendor and vendee were treated by writers upon this subject and the authorities.
The plaintiff insists that the decision of this Court leaves her with a mere barren title, and that leaving the defendant in possession virtually divests her of her title. The plaintiff purchased the mere legal title, subject to the equitable title of the defendant. Equity deems the interest on the purchase money as an equivalent for the value of the rents and profits, or the use and occupation of the premises by the defendant.
Equity treats the vendee as the owner of the property, and as such entitled to its rents and profits; and the vendor as the owner of the purchase money, and as such entitled to the interest thereon. (2 Sugden on Vendors, 254, 793, citing numerous cases.) If the plaintiff is the owner of or entitled to receive the purchase money due from the defendant, she has an ample remedy to enforce the vendor's lien in equity, and have the interest purchased by the defendant sold for the payment of the debt, and the interest she will receive will be an equivalent for the possession. If she is not entitled to the purchase money, she holds the mere legal title, subject to the equities of the defendant under the agreement. As that agreement gives the defendant the right to the possession, to oust him from that possession would be divesting him of a right vested in him by the agreement. The holder of the demand for the purchase money has the right to grant the defendant such lenity as he sees fit about its payment, and the plaintiff has no right to complain that the defendant has not paid the purchase money, unless it is due to her, when she has an ample remedy for enforcing that demand. We see no valid reason for granting a rehearing in this case.
The rehearing is therefore denied.