Hawkins v. Thurman

• Decision Date: 01 January 1875
• Citation: 1 Idaho 598
• Parties: P. B. Hawkins Et Al., Respondents, v. William L. Thurman, Appellant.
• Court: Idaho Supreme Court

1 Idaho 598

P. B. Hawkins Et Al., Respondents, v. William L. Thurman, Appellant.

Supreme Court of Idaho

January 1, 1875

SPECIFIC PERFORMANCE-VENDOR'S LIEN-PRACTICE.-A decree for a specific performance in a suit brought to enforce a vendor's lien, cannot be upheld.

VENDOR'S LIEN-SECURITY.-A vendor's lien cannot be enforced for the purchase money of a tract of land, when the parties have stipulated in their contract for other security. It is only in cases where no security is taken, except that which the law gives, that a vendor's lien attaches to the land.

APPEAL from the Second Judicial District, Ada County.

Prickett & Hasbrouck and J. W. Huston, for the Appellant. J. Brumback for the Respondents.

HOLLISTER J.,

delivered the opinion.

WHITSON J., concurred.

This is a proceeding in equity instituted in the district court of Ada county, which seems to be somewhat of a complex nature but from an attentive examination of the pleadings we have had but little difficulty in ascertaining its true character.

It appears that Pendleton B. Hawkins and one Jesse A. Hawkins entered into a contract in writing, under seal, on the fourteenth day of December, 1869, with the appellant, by which it was agreed that the two Hawkinses had sold to the appellant and let into the possession thereof, certain tracts of land lying in Ada county, for the sum of six thousand five hundred dollars, in gold coin, three thousand dollars of which the appellant was to pay on or before the first of June, 1870, and the remainder on or before the first of March, 1871, with a stipulation therein that if default should be made in the payment of the purchase money, or any part thereof, the appellant, should pay on the sum due, interest at the rate of three per cent per month, and with a further stipulation that at the option of the vendors, if default should be made in the payment of the purchase money, the vendors might re-enter and take possession of the land, and that all payments which have been made should become forfeited.

It further appears, as is alleged in the complaint, that the appellant failed to make the last payment, although, it is alleged, the vendors had complied with the terms of the contract on their part by tendering to him a deed for the land as agreed upon. There is a further allegation in the complaint that there was a mistake made by the parties in the contract, in the description of some portion of the land conveyed, which the court was asked to correct by its decree, so that it might conform to the intention of the parties. On the hearing the court entered a decree accordingly.

Except in so far as the suit was brought to correct the abovementioned mistake, the complaint shows that it was instituted to enforce a vendor's lien to secure the...