Lockie v. Cooperative Land Co.

Defendants appeal from a money judgment for $5,074 in favor of plaintiff and respondent, which judgment also decreed that the same should he a special lieunder section 3050 of the Civil Code, and be prior to thlien of a mortgage of the defendants and Olcese and Buchenau, upon lots 670 and. 671, containing forty acres of the Fairmead Colony No. 5 tract in Madera County, and further decreed that said property be sold to satisfy said judgment and lien. The order denying a motion for a new trial is also appealed from, the appeal being taken by the alternative method.

The amended complaint alleges the execution of a contract of sale on December 9, 1912 (recorded February 7, 1913), by the Cooperative Land & Trust Company, predecessor of defendant Cooperative Land Company, by which said company agreed to sell to plaintiff and R. E. Bradley said forty acres for $4,400, $1,100 to be paid down and four promissory notes, for $825 each given for the balance of the purchase price, and upon completion of the payments, interest and taxes and surrender of agreement the purchasers were to receive a good and sufficient deed of said lots 670 and 671 with certificate of title. Soon after the making of the contract Bradley assigned his interest therein to plaintiff. At the time the agreement of sale was entered into defendants Olcese and Buchenau were the owners of the property, the Land Company not then having obtained title. Thereafter, on January 29, 1913, the property was conveyed with other property to said Land Company with a blanket mortgage back through one Jordan covering the lots here involved with other property, dated August 15, 1913, and recorded on August 19, 1913, subsequent to the recordtion of plaintiff’s contract on February 7, 1913. Olcese having died, his executors have been substituted as defendants in his place and stead, as also have Alida Buchenau, wife of defendant Herbert Buchenau and executrix of his estate, and Herbert J. Buchenau, for said Buchenau. The

The complaint alleges that prior to final tender, and in May, 1922, said Cooperative Land Company falsely and fraudulently represented to plaintiff, through its agent and with intent to deceive and defraud plaintiff, and the trial court has found that plaintiff relied upon such false and fraudulent representation, that before said company could execute and deliver a deed of the property to respondent’s wife, as respondent desired it to do, that it would be necessary for respondent and his wife to reassign or quitclaim all right, title and interest under the contract of December 9, 1912, and in and to said lots 670 and 671, to said Land Company, and that as a consideration therefor said Land Company would execute a certain new contract of sale covering the same property to plaintiff’s wife and make the date of final payment December 9, 1922, and would upon such payment being made execute and deliver its deed and certificate of title to plaintiff’s wife. The respondent and his wife were induced by such false and fraudulent representation, as found by the trial court, to execute such a quitclaim deed and the same was recorded on June 14, 1922.

Section 3050 of the Civil Code reads as follows: “One who pays to the owner any part of the price of real property, under an agreement for the sale thereof, has a special lien upon the property, independent of possession, for such a part of the amount paid as he may be entitled to recover back, in case of a failure of consideration,” and is merely declaratory of an equitable principle in accord with authority, equity and justice.

Appellants do not seriously question that there may not be a difference between a rescission of a contract and an action to declare a lien under said section, and that a lien may be enforced without rescission, but argue that in this particular action all general rules of law and equity have been discharged. Counsel argue that as the only flaw in the title of the Cooperative Land Company was the mortgage held by Olcese and Buchenau, and the contract was binding on all the defendants, that respondent has made out a perfect ease for the specific enforcement of a contract by plaintiff for the sale of real property, and that therefore there was no failure of consideration; that either such a case was not made out against all the defendants or that the respondent has misapprehended his remedy and should have brought an action for specific performance and paid the balance due on the purchase price into court so as to secure specific performance.

Appellants urge certain deficiencies of allegation in the amended complaint which would support a cause of action against defendants based upon appellants’ contention that respondent’s action lies in rescission and that in fact respondent has rescinded his contract, at least in part, and still inconsistently retains possession, and that therefore section 3050 of the Civil Code does not apply. There seems to be no force in these contentions under the facts as developed in this case. It is further urged that certain findings are not supported by evidence and that certain other findings are contrary to the evidence and the judgment therefore void by reason thereof. The findings are sufficiently supported by evidence for the purposes of this judgment and none are contrary to the evidence, and they sufficiently support the conclusions of law and the judgment.

The judgment is affirmed.

Seawell, J., Preston, J., Curtis, J., Langdon, J., and Waste, C. J., concurred.