Gaven v. Hagen

Citations

• 15 Cal. 208

Syllabus

<p>In a contract for the sale and purchase of land, which is silent as to the possession, there is no implied license for the purchaser to enter.</p> <p>Z., the owner of land, contracts in writing to sell it to K., nothing being said as to the possession. K. is to give three notes, falling due at different periods, for the purchase money. The first two notes become due at very short dates, and after they are paid, Z. is to make a deed to K., with covenants against his own acts. ¡First note is paid before the second falls due; Z. deeds the land to plaintiff, subject to the contract with K., the deed containing covenants of warranty against acts of the grantor. Later, and on the day the second note is due, K. sells the land to McE., one of the defendants. K. took possession under the contract. Shortly after, plaintiff demanded of K. payment of the second note, and tendered him a deed from himself (plaintiff) to K., with the covenants mentioned in Z.’s contract. K. said he could do nothing. Plaintiff then formally demanded payment and execution of the mortgage. K. wished to see his attorney. After the third note fell due, plaintiff demanded of McE. payment of the two notes; tendering the deed from Z. to him, (plaintiff) and also a deed from himself to McE., offering also a mortgage to be executed by McE. to secure the third note, and demanding possession. McE. refused. Held, that, under the contract, the purchaser was not entitled to possession at once; that payment of the first two notes, or tender, was a condition precedent to his right of possession; that until then, the vendor Z., or his assignee, had the legal title and could maintain ejectment against the vendee.</p> <p>Held, further, that the tenders made by plaintiff were a sufficient assignment to McE. of Z.’s covenants to plaintiff; that when McE. got a deed from plaintiff, and also an assignment of the deed from Z. to plaintiff, he would stand in the same position as if the contract between Z. and K. had bee