Bryan v. Sharp

Mr. Ch. J. Murray delivered the opinion of the Court.

Mr. J. Heydeneeldt concurred. The plaintiff filed his bill to enforce a lien claimed by him as the purchaser at Sheriff’s sale of a tract of land owned by the defendant.

The facts, as they appear by the finding of the Court, are these: John A. Sutter sold to Hackney &¡ McCullough a tract of land lying in Yuba County, and executed to them a deed, bearing date the 3d of April, 1850. All the purchase money was not paid at the time of sale. On the 9th of January, 1851, Hackney sold to McCullough one-fourth of said land, taking a mortgage upon the same. On the 27th of January, 1852, McCullough sold the undivided' half of said land to one Sharp, and took a mortgage for the purchase money; and $2,000, or thereabouts, were due upon said mortgage from Sharp to McCullough, at the time of the plaintiff’s purchase.

Sutter commenced his action on the 26th of February, 1851, [350][350] * against Hackney & McCullough, for the remainder of the purchase money, and recovered a judgment against them on the 20th of April, 1852.

Execution was issued and levied upon the premises in controversy, and the plaintiff became the purchaser, at the amount of the judgment and costs.

The plaintiff now claims not only the interest of Hackney & McCullough in said land, but the two thousand dollars due from Sharp to McCullough upon said mortgage.

It is difficult to see on what ground this claim can be justified. The plaintiff purchased all the right, title and interest of the defendants Hackney '& McCullough, to the said lands. How could this affect any past sale or transfer, so far as the present plaintiff was concerned ? By the sale, he took the property conveyed by Sutter, less the half interest conveyed to Sharp; the other defendants had parted with the legal title by deed to Sharp. McCullough had no other interest in the property than merely as a security to enforce the payment of the purchase money.

It is claimed that Sutter had a vendor’s lien upon the land sold, and that the present plaintiff, as the purchaser at Sheriff’s sale, is substituted to all of Sutter’s rights.

It is true Sutter had a lien on the premises; but that lien only gave him the right to look to it for the purchase money. So long as it did not pass into the hands of innocent purchasers without notice, his claim against the defendants was fully satisfied. The purchaser was not substituted to any new or extraordinary rights, but stands precisely as ordinary purchasers.