Gates v. McLean (1886) · DecisionDepot

Gates v. McLean

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Feb 19, 1886 No. No. 9926Published

Before: Searls

AI Brief

AI-generated · verify before citing

Holding. The court held that the trial court erred in admitting a judgment-roll of a nonsuit to prove the invalidity of an adverse title, as a nonsuit is not a final adjudication of the merits. Consequently, the judgment for the plaintiff was reversed and the case remanded for a new trial.

Issues

Whether a complaint alleging breach of a land sale contract and subsequent rescission states a cause of action for ejectment.
Whether a judgment of nonsuit is admissible as evidence to prove the invalidity of an adverse title in a subsequent action.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“A judgment of nonsuit determines nothing, except the right of plaintiff to proceed in the present action.”

“Under no circumstances will such a judgment be deemed final, whether entered before or at the trial”

“For the error indicated we are of opinion the judgment and order should be reversed and a new trial granted.”

Synopsis

Ejectment—Sufficiency of Complaint.—Where a complaint in an action of ejectment brought by a vendor against a vendee avers ownership of the property in the plaintiff, the making of a contract for the sale thereof to defendant, the payment of a part of the contract price by defendant, his entry into possession, the tender of a deed, demand and refusal of payment, notice of rescission of contract by plaintiff, tender to the defendant of the money paid, with interest, and demand of possession, which was refused, it is sufficient.

Vendor’s Remedy When Vendee Refuses to Perform.—Where a vendor of real estate has kept all his covenants in a contract of sale, and the vendee refuses to perform his part, the vendor may rescind the contract or sue for specific performance.

Judgment of Nonsuit—Admission as Evidence.—A judgment of nonsuit is not final, and determines nothing, and the admission of such a judgment as evidence to establish title to land is error.

SEARLS, C. This is an action of ejectment to recover certain lots of land in the town of Modesto. Plaintiff had [637]judgment, from which, and from an order denying a new trial, defendant appeals. The demurrer to the complaint was properly overruled. The pleading demurred to avers ownership of the property in plaintiff, the making of a contract for the sale thereof to defendant, payment of three hundred dollars on account of the purchase price by defendant, his entry into possession, tender of a deed, demand of payment, and refusal to pay, rescission of the contract by plaintiff, notice thereof and tender to defendant of the money paid, with interest, and demand of possession, which was refused. If the allegations of the complaint are true, plaintiff on his part had kept and performed all the covenants of the agreement to sell, by him to be kept and performed, and defendant had refused to pay the balance of the purchase price. This would entitle plaintiff to a specific performance of the contract, or to a rescission of the agreement and recovery in ejectment.

On the fifteenth day of August, 1881, plaintiff executed and delivered to defendant an agreement in the following language:

“An Agreement Between Samuel Gates and Samuel M.

McLean.

“The said Gates sells and binds himself to give a good and sufficient deed and possession to Samuel M. McLean of the five lots known as the Walden property, on which is the Walden house and the Barney Garner house, being on the corner of Jay and Eleventh streets, opposite J. D. Spencer’s, for the sum of two thousand eight hundred dollars, so to be paid as follows: Two hundred dollars cash in hand, one thousand two hundred dollars in thirty days, and the remainder, one thousand four hundred dollars, in sixty days, and interest on the two thousand six hundred dollars as soon as McLean is placed in possession of the property.

“Fifteenth of August, 1881.

“It is agreed and understood that if Samuel Gates cannot give a deed to the above property, on .account of any legal inability, there shall be no damages charged or received.

[Signed] “S. GATES.”

[638]

Gates v. McLean

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief