Joyce v. Shafer

Citations

• 97 Cal. 335
• 32 P. 320
• 1893 Cal. LEXIS 542

Syllabus

<p>Vendor and Purchaser — Action to Recover Purchase-money Paid — Default of Purchaser —Conveyance by Vendor to Third Party. — A purchaser under an executory contract for the sale and purchase of land is not entitled, after his default in the payment of installments of the purchase price due, to recover back the money paid thereon, merely because his vendors have conveyed the land to a third party.</p> <p>Id.—Offer of Purchaser to Perform — Inability of Vendor to Give Title. — It is incumbent upon the purchaser to offer to perform on his part, or to show that at the time performance was due on the part of the vendors they could not furnish a good title to the land.</p> <p>Id. —Brf-ach of Contract — Rescission by Purchaser. —The conveyance of the land contracted for by the vendors to a third party before the time for performance of the contract of sale is not a breach of that contract, and does not entitle the purchaser to treat the contraer as abandoned or rescinded before the time for performance arrives. One may contract to sell land which he does not own, and yet be able, when the time of performance arrives, to make a good title.</p> <p>Id. —Action for Money Paid — Effect of Assignment of Contract of Sale. —An action to recover hack purchase-money paid under an ex-ecutory contract for the sale of land is based upon the theory that the contract has ceased to exist, and that the money paid may he recovered for the use of the person who paid it, and does not arise under the contract of sale; and it seems that an assignment by the purchaser of the contract of sale does not carry with it the right to maintain an action to recover hack money paid thereon by the assignor on the ground of an. abandonment or rescission of the contract.</p>