Gates v. McLean

Citations

• 70 Cal. 42
• 11 P. 489
• 1886 Cal. LEXIS 722

Syllabus

<p>Appeal—Erroneous Finding—Immaterial Error—Judgment—New Trial. —Where an appeal from the judgment and an appeal from an order refusing a new trial are contained in the same transcript, the judgment will not be reversed or a new trial granted because of the failure of the court to find on a particular issue in favor of the appellant, or because a certain finding was without the issues, if the correction of the findings would not change the result.</p> <p>Contract por Sale op Land—Insufficient Attachment not an Encumbrance.—An attachment purporting to have been levied on certain land, but which was not served or levied as required by law, or in such a manner as to constitute a lien thereon, is not an encumbrance within the meaning of an agreement to sell the land free from all encumbrances.</p> <p>Id.—Vendee when not Entitled to Possession—Implied License to Enter. —Under a contract for the sale of land, which does not provide for the purchaser entering into possession, no license to enter is implied.</p> <p>Id.—Failure of Title of Vendor—Rescission by Vendee—Liability for Purchase Price. —Where the contract provides for the vendee taking possession, his remedy, in case the title of the vendor fails, or he is unable to make a conveyance as stipulated in the contract, is to rescind or offer to rescind the contract, and to restore the possession, in which event he may recover the purchase-money advanced, with interest thereon, together with the value of his improvements, deducting therefrom such sum as the use of the premises may reasonably be worth. If, on the contrary, the vendee chooses not to rescind, hut to retain possession under the contract, he can do so only on condition that he pay the purchase-money and interest according to the contract. In the latter case, it is considered that he is willing to receive such title as the vendor is able to give, and is content with the personal responsibility of the vendor upon Ms covenants.</p>