Gouldin v. Buckelew

Appeal from the Superior Court of the City of San Fran-' ciseo.

In this ease, the plaintiff, John C. Gouldin, filed his complaint in the said Court, on the 30th day of June, 1853, against Benjamin B. Buckelew, Junius B. Booth, [108] vendee of said *Buckelew, John H. Oraigmiles and others, judgment creditors of the said Buckelew, alleging that, on the 2d day of August, 1850, he purchased of the defendant Buckelew, a lot of ground in the City of San Francisco, for the sum of $200, paid him $52 50 cash on account, and at the same time, executed to him his three several notes in the same amount, payable in thirty, sixty and ninety days thereafter; that the said Buckelew, at the same time, executed and delivered to him his bond in the sum of $210, conditioned, after reciting the terms of the purchase, that if the said Gouldin should pay, or cause to be paid, to the said Buckelew or assigns, at the time when these notes respectively became due, the said sums af money, etc., the said Buckelew should convey, or cause to be conveyed, to the said Gouldin or assigns, the said lot of land, by good and sufficient deed, with covenant of warranty against all incumbrances, then that the obligation should be void, etc.; that in the said instrument it was further provided, that in case any one of the said notes should remain unpaid after the same has become due, the said Buckelew reserved to himself the right to again expose the said property at public sale, after ten days’ public notice, on account of the above purchaser, subject to the-amount due the said Buckelew and costs and expenses, and that the said instrument was, at the same time, acknowledged by the said Buckelew, and afterwards, on the 21st day of May, 1858, duly recorded in the Becorder’s office of the County of San Francisco; that the said Buckelew never presented the said notes for payment, and that they are still unpaid; that since the 2d day of July, 1851, there have been unsatisfied judgments against the said Buckelew on the records of the county, which are liens on the real estate of the said Buckelew in the said county, whereby the said Buckelew was unable to convey a good title, free of incumbrances, to the said plaintiff; that, on the 25th day of May, 1853, the said Buckelew, after some previous conversation with plaintiff, in which he endeavored to induce him to surrender his claim to the said lot, sold it to the defendant Booth, for $1000; that the said defendant Booth did not purchase at a public sale, after ten days’ notice, nor was the said sale on account of the said plaintiff; that said' Booth had *constructive notice of plaintiff’s title; that the said [109] sale does not bind plaintiff, and, after tendering the sum of $250, brought into Court, to be paid thereout to the said Buckelew, or whoever may be entitled thereto, the amount of the said notes and interest, and taxes, and whatever sum he is liable to pay, the said plaintiff prayed that the said defendants may severally answer, etc.; that the Court will direct an account to be taken of the amount due on said notes, etc.; that the said Buckelew or Booth be ■ compelled to convey said land to plaintiff; that the judgment creditors of Buckelew be enjoined from enforcing their liens against the same; that the amount of money found to be due from said plaintiff be ordered to be paid to whoever is entitled thereto, or that, if a conveyance of the said land cannot be decreed to plaintiff, that an account be taken of the amount of the excess of the purchase money upon the sale to Booth, over and above the amount due from plaintiff; that the excess be decreed to be paid to plaintiff by whoever is liable therefor; that the amount deposited in Court by plaintiff be returned to him, and that he have such other and further relief as equity and good conscience, and the nature and circumstances of the case require, etc.