Walker v. Sedgwick

Burnett, J., delivered the opinion of the Court—Field, J., concurring. The defendant having entered into possession of the land under the plaintiff, and in subordination to his title, is estopped from denying it. 1 Cal. Rep., 120, 470; Ellis v. James and others, April, 1857.

When the purchaser does not obtain the title which the deed purports to convey and the covenants embrace, and he goes into [403]and retains possession under the deed, and 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 outstanding title in another, and offering to re-deliver the possession, and account for the rents and profits. In such case he cannot be permitted to retain possession of the land, and denied the title under which he entered. 2 Cal. Rep., 286; 4 Cal. Rep., 266. The question whether the title of the property is in the United States, or in some one else, cannot be raised in this case. ÍTor can either of the parties object, for the purposes of this suit, that the instrument was not in law a conveyance in presentí. They have both treated it as such, and possession was had under it. 2 Cal. Rep., 141. Both parties being estopped from denying the title, the lien of the vendor cannot be affected by giving the notes. 2 Cal. Rep., 269. And the lien equally exists whether the instrument amount to a conveyance, or merely to an executory contract thereafter to convey. 1 Leading Cases in Equity, 263.

The objection that there had been no execution issued and returned nulla bona, was not well taken. This return is only one mode of proving insolvency. Any other competent proof would be equally efficient. The law does not require a vain thing, and to issue an execution against a person insolvent would be idle. Heyneman and others v. Dannenberg and others, October, 1856.

So, the objection, that the consideration of the notes was made up of both personal and real estate, we think not well taken. The plaintiff alleged in his complaint that the notes were given for the land, and this allegation is nowhere denied in the answer. The fact stands admitted by the pleadings, and the defendant could not raise the question. -

The most serious objection made by the defendant is, that the plaintiff waived his lien by his suit upon the notes.

Under a system where equity and law were administered in different suits, and in different tribunals, it has uniformly been held, that a mortgagee might first sue at law upon the note,.and afterwards proceed in equity to foreclose the mortgage. The remedies were different, and while the party could not proceed upon both at the same time, he might make his election, and first proceed at law and then afterwards in equity. And. the privilege of two remedies was as open to a vendor, as to a mortgagee.