Escobar v. Rogers

LAWLOR, J.

This is an appeal from a judgment in favor of the plaintiff in an action for the partition of certain personal property consisting of sixty-five head of cows and other livestock, hay, wagons, plows, a tank, a separator, a gas engine, and a cultivator, of which, plaintiff alleged in his complaint, he and defendant Rogers were joint owners, each having an undivided one-half interest in such property. Defendants Manuel Rogers and C. H. Kemp answered separately. The former set out

in Tiaec verba

the contract, the particulars of which are hereinafter summarized, between himself and the plaintiff for the sale of the subject matter of this action, and both defendants alleged that all right, title, and interest in or to the said property

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had passed out of plaintiff by virtue of the sale thereof to defendant Kemp in execution of a judgment, hereinafter discussed, against the plaintiff.

There is practically no dispute as to the facts. On October 30, 1912, Escobar, Rogers, and two others were conducting a dairy in the county of Marin, each owning an undivided one-fourth interest therein, part of which was the property we have already mentioned. On October 30, 1912, Escobar and Rogers entered into the agreement set out in the latter’s answer, the validity of which agreement is admitted by the plaintiff. By the terms of the contract, plaintiff’s interest in the property described in "the complaint was sold to the defendant Rogers for the sum of three thousand seven hundred dollars. The purchase price was to be paid in four installments, the last installment of one thousand dollars to become due and payable on the first day of September, 1915, and title was to remain in the vendor until payment in full should have been made. The property was, however, to be in the possession of the vendee, Rogers, from and after the execution of the agreement. It was further provided that, in the event of the failure of the vendee to pay any of the installments as they fell due, the vendor might elect either to treat the transaction as a completed sale and sue for the whole of the purchase price, or to rescind the agreement, reclaim his interest in the property, and retain as liquidated damages all payments previously made by the vendee. Pursuant to these provisions, the vendee entered into the exclusive possession of the property and subsequently removed the greater portion thereof to a ranch in Merced County. The first three installments under the contract were met, but the last payment of one thousand dollars was never made. The vendor chose to rescind the contract and instituted this action on January 30, 1916, praying for a partition of the property. It further appears that a default judgment for $107.50 was entered against the vendor herein on May 11, 1914, in an action between him and one R. B. Williams in the justice’s court for Sausalito Township, Marin County. After due proceedings an execution was issued to the sheriff of Merced County, who, on April 21, 1915, levied upon “the entire interest of Joseph Escobar in the stock under the control and possession of Manuel Rogers at the Bates Ranch, i. e.,