Central Pacific Railroad v. Mudd

McKinstry, J.: Ejectment. Plaintiff and defendant Mudd entered into written agreements by which plaintiff agreed to sell to defendant certain lands, defendant to pay the purchase price in installments of principal and interest. There was a stipulation in the contract in these words: “And if the said party of the second part (defendant herein) shall fail to punctually make any of said payments of interest or principal, or shall fail to strictly comply with any of the stipulations of this contract, then the said party of the first part, its successors or assigns, shall have the right to enter upon and take possession of the said premises, with all the improvements thereon.”

The complaint alleges plaintiff’s ownership and seisin in fee of the lands, and sets out the contracts in full; avers the entry of defendant Mudd in pursuance of the contracts; that there became due and owing (at times mentioned) certain interest, etc., no part of which has been paid, and that plaintiff demanded payment, which said defendant refused. That thereafter plaintiff demanded possession of defendants, which was also refused, and is still refused, etc., defendants withholding the possession. That the other defendants are in possession with defendant Mudd and under him.

The prayer is: First, for the restitution of the tracts of land and premises; second, for two hundred and eighty dollars, rents, etc. (or mesne profits).

To the complaint defendants demurred, on the grounds: First, that said complaint does not state facts sufficient to constitute a cause of action; second, that several causes of action are improperly united. The Superior Court sustained the demurrer, and, the plaintiff declining to amend, judgment was rendered and entered for defendants. From which plaintiff has appealed.

The action is an action at law for the recovery of the pos[588]session, and the sole question is, whether the facts alleged show plaintiff to be entitled to the possession, as against defendants.

The complaint alleges that defendant Mudd entered under and in pursuance of the contract. The question considered in Gaven v. Hagen, 15 Cal. 208 (whether where a contract for sale and purchase of lands is silent as to possession the vendee has a right to take and hold possession prior to conveyance), is not involved in the present inquiry. The decision in Willis v. Wozencraft, 22 id. 618, was put, on petition for rehearing, upon the ground that the contract there relied on by the vendee provided for possession by the purchaser, and did not provide that, on failure to comply with its conditions, his right to the possession should cease. Whatever may be said of Willis v. Wozencraft, it is not like the case now before us. The Court there said: “ But it is now urged that this right of possession (in the purchaser) extends only to the time when the purchase money became due, and if the money was not then paid the right of possession in the vendee ceased, and the same reverted to the vendor. Buck are not the terms of the contract, nor is such the proper equitable construction of it. There are no words in the agreement thus limiting the right of possession vested in the vendee.” And in the same case (22 id. 615): “The right to a conveyance was dependent upon the payment of the purchase money, but the right of possession was, under the agreement, immediate and continuous, and not dependent upon such payment.”