Samuel v. Allen

Citations

• 98 Cal. 406
• 33 P. 273
• 1893 Cal. LEXIS 934

Syllabus

<p>Vendor and Purchaser—Action for Purchase-money—Evidence'—Offer and Befusal to Perform—Non-residence of Purchaser—Insufficiency of Proof__In an action by a vendor for the recovery of money due upon a contract for the sale of land, where issue was joined as to an offer of the plaintiff to perform, and refusal to perform upon the part of the defendant, proof that the plaintiff had prepared a deed and was ready to deliver it, and that he had heen told that the defendant, who was a resident of another state, had no residence in this state, is not sufficient to sustain a finding for the plaintiff, where it is not shown that the defendant was actually out of the state at the time of the alleged offer, or that he did not have a place of business within this state, or that plaintiff had used any diligence in finding the defendant within the state, or to ascertain whether he had a place of business therein.</p> <p>Id.—Vendor’s Lien not a Mortgage — Personal Action. — A contract for the sale of land, by the terms of which the vendor is to retain title to the land until the payment of the entire purchase-money, does not establish the relation of mortgagor and mortgagee, and there is no statutory prohibition upon the right of the vendor to a personal action to recover the purchase-money when it becomes due.</p> <p>Id. —Action for Purchase-money not Local.—An action to recover the purchase-money for land sold is not a local action, and may be brought in a different county from that in which the land is situated.</p> <p>In. — Encumbrance upon Land Sold—Failure to Find upon Material Issue. _Where the defendant in such action denied that the plaintiff was able to convey the land free from encumbrance, or that he could furnish title according to the contract, and there was evidence tending to show an existing encumbrance, a failure to find upon such issue is material.</p> <p>Id.—Water StooEt Evidence—Pro Bata Share—Payment of Assessment bs Vendor—Insufficiency of Proof__Where the