Walker v. Sedgwick

Citations

• 8 Cal. 398

Syllabus

<p>A party entering into the possession of the land of another, and in subordination to his title, is estopped from denying his grantor’s title.</p> <p>When a purchaser of land does not obtain the title which the deed purported to convey, and the covenants embrace, and he goes into and retains possession under the deed; gmd the failure of the title goes to the entire consideration paid, or to be paid, for the land, then he must seek his remedy by a recision of the contract, alleging a paramount title in another, and offering to re-deliver possession, and account for the rents and profits.</p> <p>The vendor’s lien on the land conveyed is not lost by his taking the notes of the purchaser for the purchase-money. And the lien equally exists, whether the instrument amounts to a conveyance, or merely to an executory contract. ,</p> <p>In a bill in equity to enforce the lien, it is not necessary to allege the issuance of execution, under a judgment at law, previously obtained by the vendor against the purchaser for the amount due, and return of nulla bona to sustain the allegation of insolvency.</p> <p>Return of nulla bona on an execution is only one mode of proving insolvency. Any other competent proof would be sufficient.</p> <p>Where a vendor of land has taken the notes of the purchaser in payment, and brings his action thereon at law, he should, in that action, if at all, unite his equitable claim for a foreclosure of his lien—the same tribunal administering both law and equity.</p> <p>But in a case where the party brought his separate actions, first at law on the notes, and then 'in equity for a foreclosure, before the adoption of this rule: Held, that he be allowed both his legal and equitable remedies, on payment of the costs of the latter suit.</p> <p>And if the defendant has a legal offset to the notes: Held, that he may plead it in the latter suit.</p> <p>The objection that the proceedings may become too complex by permitting different questions of law and equity