Houghton v. Allen

Citations

• 75 Cal. 102
• 16 P. 532
• 1888 Cal. LEXIS 486

Syllabus

<p>Vendor and Vendee—Contract fob Sale of Land—Mortgage by Vendee— Subsequent Conveyance by Vendor—Foreclosure.—On the 22d of August, 1870, one Jackson, the owner of the land in controversy, entered into a written contract with the defendant Allen, whereby he agreed to convey the same to him on the twenty-second day of August, 1872, provided Allen paid him a certain amount in cash, and the balance on certain subsequent dates. The contract provided that time should be of its essence, and that if Allen made default in the deferred payments, Jackson should be released from the obligation of performance, and should sell the land at public auction for cash, and out of the proceeds should retain the amount due him on the contract, together with the expenses of sale, and pay the overplus, if any, to Allen. This contract was not recorded until the 9th of July, 1872. Allen went into possession under the contract, and while in possession, on the 6th of April, 1871, mortgaged the lands to the plaintiff. Allen made default in the deferred payments, and the plaintiff never paid or offered to pay the same. On the 12th of January, 1872, Jackson, with the consent of Allen, for a valuable consideration, conveyed the land to the defendant Dresbach, who knew of the contract between Jackson and Allen. No demand was ever made upon Jackson or Dresbach to sell the land at public auction. Held, that the title acquired by Dresbach was adverse to that acquired by the plaintiff under his mortgage from Allen, and was not subject thereto, and could not be cut off in an action to foreclose the mortgage.</p>