Combination Land Co. v. Morgan

California Supreme Court Aug 6, 1892 No. Nos. 14345; 14346Published

Before: Beatty

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Holding. The court held that a purchaser of land is not a bona fide purchaser for value if they receive notice of a vendor's lien before completing payment for the property, even if they had no notice at the time of the initial agreement. Consequently, the judgment was reversed because the respondent had not fully paid for the land before receiving notice of the plaintiff's lien.

Issues

Whether a nunc pro tunc order amending an order denying a new trial supersedes the original order for the purpose of appeal.
Whether specifications in a bill of exceptions were sufficient to challenge the sufficiency of the evidence.
Whether a purchaser who receives notice of a vendor's lien after an initial agreement but before full payment qualifies as a bona fide purchaser for value.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“We think, on the contrary, the second order merely corrected the first, and took effect as of the date of the order corrected.”

“The authorities cited in the appellant’s brief amply sustain the proposition that notice before payment is equivalent to notice before purchase”

“It was also necessary for him to show that he had paid for the land before he received notice of the vendor’s lien, and this he had not done.”

Synopsis

Order Denying New Trial — Effect of Nunc tro Tunc Amendment — Relation to Date of Order — Appeal. —A nunc pro tunc order of the trial court amending an order denying a new trial after the taking and perfecting of an appeal therefrom, by adding a recital to the effect that the motion for a new trial was based and submitted on a bill of exceptions filed at the date of the hearing of the motion, merely corrects the first order, and takes effect as of the date of the order corrected; and a contention that the last order superseded the first, and is the only order denying a new trial, which should have been appealed from instead of the first order, is untenable. In legal effect there was but one order.

New Trial — Bill of Exceptions — Specifications — Insufficiency of Evidence—Decision against Law. — Where the specifications in a bill of exceptions used on a motion for new trial include a double statement that the evidence is insufficient to justify the decision, and that the decision is against law in the particulars specified, the ambiguity is removed where the particulars stated show that the objection is to the insufficiency of the evidence.

Vendor’s Lien — Bona Eide Purchaser—Notice before Payment. — In' an action to foreclose a vendor’s lien upon land, a defense of a second vendee, that he was a bona fide purchaser for value without notice, is net made out by proof that he purchased in good faith, without any previous knowledge of the fact that his vendor had not fully paid the original vendor, but it is also necessary for him to show that he had paid for the land before he received notice of the original vendor’s lien.

Id. —Notice of Non-payment by Vendor— Effect upon Second Vendee — Deduction from Purchase Price.—Notice to a second vendee of land before his payment for the land, that his vendor had not fully paid the original vendor, is equivalent to a notice before purchase, and he is affected pro tanto as to the amount remaining unpaid by his vendor, and if he pays such amount he can enforce repayment from his vendor by deducting it from the purchase price or valuation of the land sold to him.

Beatty, C. J. In this case the plaintiff gave one notice of appeal from the judgment and from the order denying its motion for a new trial, and one transcript of the record would have sufficed for both appeals, but two transcripts of the same record have been filed; one labeled “ Transcript on appeal from the judgment,” numbered 14346, and the other labeled “ Transcript on appeal from order refusing new trial,” numbered 14345, thus apparently making two cases of what is practically one.

All errors assigned and referred to in the argument are presented by the appeal from the order, and to that I shall confine my attention.

The objections urged by the respondent to the right of the appellant to be heard on this appeal are untenable. The order denying a new trial was made and entered June 21, 1890, and the notice of appeal designates it as of that date. After the appeal had been taken and perfected, the appellant, on the 19th of January, 1891, obtained a nunc pro tunc order of the superior court amending its order of June 21,1890, by adding a recital to the effect that the motion for a new trial was based [550]and submitted on a bill of exceptions filed at the date of the hearing. The contention of the respondent is, that the last order superseded the first, and was and is the only order denying a new trial, and that it never has been appealed from. We think, on the contrary, the second order merely corrected the first, and took effect as of the date of the order corrected. • In legal effect there was but one order. The new trial was denied June 21, 1890, and the time for appealing began to run at that date.

Another objection of the respondent to the consideration of the errors assigned (which relate solely to the sufficiency of the evidence to sustain the findings) is, that the bill of exceptions contains no specifications of the particulars in which the evidence is alleged to beinsufficient.

The plaintiff in framing his bill of exceptions prefaced his specifications with this statement: “ Plaintiff says that the evidence introduced on said trial is insufficient to support said decision, and said decision is against law in the following particulars.” The respondent claims that because this statement embraces two distinct grounds of motion he was not apprised by the following specifications whether the attack upon the decision was on the ground of insufficiency of the evidence to sustain it, or on the ground that it was against law. But we think that whatever view may be taken as to the distinction between a decision against evidence and a decision against law, and however ambiguous the expression above quoted may be held to be, the specifications by which it was followed in this bill of exceptions were amply sufficient to remove the ambiguity, and apprise the defendant that the real ground of attack upon the decision was insufficiency of the evidence to justify the findings of the court, to the effect that he was a bona fide purchaser without notice and for a valuable consideration.

Combination Land Co. v. Morgan

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