Merrill v. Merrill
Before: Temple
Synopsis
Vendor and Purchaser—Default of Purchaser—Withdrawal of Deed From Escrow—Recovery Back of Purchase Money—Lien Not Enforceable.—A purchaser who has paid part of the price under a contract for the sale of land, and has made default in the payment of an installment, whereupon the vendor has withdrawn his deed from escrow, and denied the right of the purchaser to a conveyance by reason of a provision of forfeiture in the contract of purchase, may recover judgment against the vendor for the purchase money paid under the contract; but cannot enforce a special lien upon the property for failure of consideration under section 3050 of the Civil Code for such part of the amount paid as he may be entitled to recover.
Id.—Extinction of Obligation—Failure of Consideration. —The rescission of a contract of purchase by the vendor which extinguishes the obligation, does not cause a failure of consideration.
Construction of Civil Code—Lien of Purchaser—Loss Resulting From Purchaser’s Default.—Section 3050 of the Civil Code is intended to secure the purchaser from injury from wrong or inability to perform on the part of the vendor, and the purchaser cannot acquire an equity based upon his own wrong, and is not afforded a lien by the code to secure him from loss resulting from his own breach of the contract.
The Court. Upon further consideration of this cause, after submission in Bank, we are satisfied with the conclusion which was reached by Department Two in its [289]opinion filed January 26,1894, and for the reasons stated in said opinion the judgment appealed from is affirmed.
The following is the opinion of Department Two, above referred to:
Temple, C. This is an appeal upon the judgment-roll, in which the plaintiff contends that she was not awarded all the relief to which she is entitled upon the pleadings and findings.
It is the second appeal in the case. The first appeal was from a judgment on demurrer, and is reported in 95 Cal. 334, where the nature of the contract upon which action is based is fully shown.
Plaintiff recovered judgment for the money she had paid upon the contract of purchase, but was not allowed a lien upon the land. She now insists that the pleadings and findings taken together show that she is entitled to such lien, and she asks that the judgment be corrected or modified in accordance with her claim.
In pursuance of the contract of purchase, the defendant, who is the vendor, executed a deed which was placed in escrow, under the condition that “in case of default in the payment of the sums of money as herein named, . . . . then said sums of money are to be considered forfeited,” and the deed was to be delivered to the vendor. After paying three thousand dollars, plaintiff made-default in the payment of an installment, and thereupon the vendor demanded and obtained the deed, and denied the right of plaintiff to purchase. Apparently the court denied the lien on the ground that the rescission was claimed by defendant because of the default of plaintiff.
Plaintiff relies upon section 3050 of the Civil Code, which reads as follows: “One who pays to the owner any part of the price of real property, under an agreement for the sale thereof, has a special lien upon the property, independent of possession, for such part of the amount paid as he may be entitled to recover back in case of a failure of consideration.”
She claims that when defendant withdrew the escrow [290]
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