Rourke v. McLaughlin

Citations

• 38 Cal. 196
• 1869 Cal. LEXIS 138

Syllabus

<p>Construction op Contracts.—If a contract for the sale of land provides that the purchase money shall he paid by instalments, and that if the vendee, at any time, fails to meet his payments, he will surrender the possession of the land to the vendor, this does not entitle the vendee to elect whether he will pay the purchase money or surrender the possession of the land.</p> <p>Want op Consideration.—If McL. and wife convey to R., for the sum of one thousand dollars, and on the same day, and as a part of the same transaction, R. gives McL. and wife a contract for the sale of the same land, for the same price, payable by instalments, and for a good and lawful deed upon the payment of the purchase money, in an action by R. to recover an instalment, McL. and wife cannot rely upon an alleged want of title to tho land in R. as a defense to the action.</p> <p>Independent Promises.—If, in a contract for the sale of land, the purchase money is to he paid by instalments, and a deed is not to be given until the whole price is to be paid, the promises of the vendee are independent, and the vendor may sue upon all of them, except the last, without averring a willingness to perform, on Ms part, or tendering a deed.</p> <p>Defense to an Action upon a Contract for hie Sale of Land.—The fact that the vendor of land is not within the jurisdiction of the Court, is no defense to an action, in Ms name, for the purchase money, although the vendee has not yet received Ms deed, and is not entitled to it, by the terms of the sale, until all the purchase money is paid.</p> <p>Specific Performance—When Decreed.—The fact that the vendor of land is absent from the State at the time the vendee becomes/ by the terms of the sale, entitled to a deed, does not prevent him from giving a deed voluntarily, nor the Courts of this State from compelling Mm to do so, in person, or by a Commissioner appointed by the Court to act for him.</p> <p>Idem. — Specific performance will he decreed whenever the par