The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1891-01-26

son therefore had no right, as against the
owner OF the thing, to make it part of the
realty; and the decision was that the owner
of the realty stood in the shoes of the person
who did the afhxing, and had no greater rights
than the latter had. 1t is true that in the case
before us the houses were affixed to the land
by a contractor; but he affixed them under q
contract with the vendee. and for his bene-
lit, and of course must be taken to have con-
scented 10 the afhxing and to all its conse-
quences.
II results that the houses were part of the
realty, and that the vendee had no greater
right to them than to any other part OF the
property.
The defendants, however, advance two ar
guments, which apply not merely to the hx-
lures, but to the whole property.
F In the first place they invoke the maxim
that equity regards that as done which in
good conscience ought to be done. and argue
That after the contract the vepdee was the
trustee OF the purchase money and the owner
in equity OF the land and could Zeal with 1t
as ne saw fit. AS above stated, this argument
has no reference to fixtures distinguished
from the land itself, but applies to the whole
property. Nor does it depend upon whether
the vendor has permitted the vendee to take
possession before performance For under
the rule relied upon the vendee is as much the
equitable owner where he has not taken pos
session as where he has. Nor does the argu-
nent depend upon whether the unpaid pur-
chase money is due or not. For by the terms
OF the rule 1t applies as soon as the contract is
made II the argument is good at all it re-
is made the vendee should il every case be
entitled to enter upon the enjoyment of the
property and be allowed to deal with it as he
sees fit. But this is certainly not the law.
The maxim referred to is not of universal ap-
plication. Il Story Eq. Jur., Sec. GA, g. 1t
was established by courts of equity to
attain equitable ends, and 1t will not be APP
piled to accomplish results which are inequit-
abe-as for example, to enable a vendee TO
waste or destroy the property before the per-
Torrance of his contract Before such per-
fOrm1nca Xyhatpypr interest ia =
to be Invested upon non-performance, for in
case of non-performance the vendor is not
compelled to forclose a lien upon the prop
erty, but may rescind or retalSe possession.
tHannan VS.. McNiclle SO Cal. 126; Connolly
VS.. Hingley, id. 643; Hoffman VS.. Remnant,
~ Cal. i; Troy VS.. Clark, 80 Cal. 40. The
interest of the vendee must therefore be con-
ditional. Non constat, that he will be
able to perform the condition when
the, time for the performance arrives;
performance for granted to such extent
as to allow him to waste or destroy the
property. Nor does it make any difference that
the vendor has permitted him to take posses
sion. Such permission does not carry with it
q right to waste or destroy the property in the
case OF a yendee any more than it does III the
ease of tenant. The question involved was
decided in of Crockford VS.. Alexander,
(15 Yes. 1881 in which Lord Eldon en-
joined a vendee in possession from cutting
timber, although he admitted that the vendee
was in equity the owner Of the estate.
The case would be different if the vendee
had performed all the conditions OF his con-
tract. In such case he would be the absolute
owner of the equitable estate, and the vendor
would have merely the dry legal title, which
he would be compelled to transfer when re-
quired, and which ne would not in the mean
time be allowed to use in opposition to the
interests or wishes of the vendec. But this
would not be by reason of any presumed or
SuppoSititious performance by the vendee but
because he had actually performed. AS above
stated, the record does not show clearly
whether the vendee has paid all the purchase
money or not. But the inference from what
is stated, and from the argument of counsel, is
that he las not And Us the defense Is based
upon an equity in opposition to the legal title,
IL was incumbent upon the defendants 10
make the fact appear. (Arguelio VS.. Bours,
81 Cal. 1900
In the next place it is contcnded that the po-
sition of u vendor after an eXecutory contract
4 OF purchase is analogous to that of a mort
g,igee; and that the rule that mortgage can
not have an injunction against the removal OF
| a portion of the mortgaged premises without
| showing that his security would thereby be
! impaired, applies here. This is but a variation
| OF the preceding point. 1t is in substance
saying that the vendee will DE allowed to
! waste and destroy the property unless it be
shown that the vendors lien viii thereby be
! impaired; and it depends upon the PROPOSE
ton that the position of the vendor is like that
| of mortgage. There are some respects in
! which the analogy holds, more especially in
| the case of common-iaw mortgage-where
| the mortgage mas the legal title. But the
| likeness is by no means perfect. The vendor
has not a mere lien for the security of money,
which he must foreclose upon non-perform-
ance by the vendee. As shown by the cases
! cited under the preceding head, he may, upon
such non-performance, rescnd the contract
and retake possession. He has therefore in
addition to the legal title q reyersion-
airy interest in the equitable estate,
/ the vendee, which interest will be protected
| in equity. The vendee on his side mas before
/ terest for equitable purposes; and, as above
stated, a court of equity will not take his per-
! Torrance for granted to such an extent as to
enable him to grasp at once at the enjoyment
| of the property.
1t results that the judgment is not sustained
by the findings. But in the somewhat uncer
| tain condition of the record We do not think
that final judgment should be ordered for the
| plaintiff.
We therefore advise that the Judgment be
reversed and the cause remanded for Il new
| trial. HAYNE, c.
We concur:
| BELCHER, c.,
VAN CLIEF, G.
THE COURT.
For the reasons given III the foregoing opin
ion the Judgment is reversed and the cause re-
nanded for q newtriai
Filled January 10, 1911
Appeal from Superior Court, san Bcrnardino
Ccunty-John l.. Campbell, Judge.
For appellant, Curtis q Otis, Henry NJ
Willis.
For respondent, H. c. Rolfe
DEPARTMENT TWO.
BALL, Respondent1
VS.. mo. 13,SOS.
KEHI., Appellant.
The complaint alleges in substance that the
| defendant had by ans of 2 canal appro
| priatcd the waters Of y certain creek for the
purpose OF operating a mill owned by him
and that, subject to the use and right 10 use
said water by the defendant, the plaintiff has
! for twelve years last past appropriated and
used adversely to defendant for irrigation
! agricultural and domestic purposes the water
! 81 forvintr in said caJ,oI xrbanayer no I'd