Conde v. Sweeney

Injunction—Contract to Sell Mines—Improvements by Vendee Made Part op Realty—Attachment by Creditors op Vendee— Pleading—Cause op Action.—A complaint to restrain a sheriff from levying a writ of attachment upon improvements to mines made by a vendee under a contract of sale thereof, which alleges that by the terms of the contract all improvements erected by the vendee were to be the property of the vendors until the whole purchase money was paid for by the vendee “in accordance with the terms of the said agreement,” though it would be more satisfactory had it set forth in full the terms of the agreement, yet the com-, plaint is sufficient to justify a restraining order pending the hearing for an injunction.

Id.—Presumption op Proop op Agreement at Hearing.—Presumably the agreement of sale, when introduced at the hearing, though not' set forth in the complaint or answer, supported the plaintiff’s averments in relation thereto.

Id.—Rights op Company as Vendee op Mines.—The right of the mining company as vendee of the mines, under the contract of sale, was a right to prospect and develop the mines. It had no right to commit waste or remove from its situs that which constituted a part of the realty, other than ore bodies or minerals, or to make such use of timber and the like as might be necessary in the working of the mines.

Id.—Rights op Creditor op Vendee.—Obviously, no creditor of the vendee has any greater right than that possessed by the vendee; and when improvements by the terms of the contract of sale belong to the vendors no creditor of the vendee can reach them by attachment, where the vendee has not acquired the legal title from the vendors.

Id.—Provision for Title to Fixtures in Vendor not Unreasonable. There was nothing unreasonable in the provision in the agreement by which the vendors had the privilege that whatever fixtures the vendee found necessary to affix to the land should thereupon become the property of the vendors, unless the company vendee made full payment for the mines at the time stipulated.

Id.—Loss of Riohts of Vendee—Injunction—Evidence—Presumption upon Appeal.—Where it appears that all rights of the company as vendee to make the purchase had “expired before the injunction against the attachment was granted, and there is no pretense that it complied, or offered to comply, with the contract of purchase, and the case was heard upon oral and documentary evidence, which is not brought up upon appeal from the order granting the injunction, it must be presumed that the evidence is sufficient to support the order granting it.

Id.—Result of Trial—Affirmance of Order.—Though this court cannot act alone upon the statement of respondent in his brief that, since the injunction order appealed from was heard and determined, “the case has been tried on its merits, findings of facts and conclusions of law were duly made, and judgment entered for plaintiffs,” which is not denied, although such fact, if true, would avail appellant nothing to prevail on this appeal; yet, regardless of this fact, the order appealed from should be affirmed.