Appeal from the Fourth Judicial District.
On February 28th, 1860, J. P. Leese and wife, plaintiffs, sold and conveyed to defendants 8herwood and Richard Hellmann a tract of land in Monterey County, called the Sausal Rancho, for the sum of $32,000.
A suit was then pending in the Third District Court, brought by one Rico against the plaintiffs to recover a portion of said rancho, and in consequence of this only $18,000 of the purchase money was paid down by Sherwood and Hellmann, and by the deed to them it was agreed that the balance of $14,000 was to he paid “ when the suit now pending by Francisco Rico against the said parties of the first part, (Leese and wife) shall be finally decided and determined in favor of said parties of the first part, the defendants therein, said suit being now pending in the District Court of the Third Judicial District in the said State, in the county of Monterey, and being for the recovery of said land and rancho; and upon said suit being finally decided in favor of the parties of the first part, as against all claim made by said Rico, then immediately said parties of the second part shall pay, as shall also them heirs and assigns, to said parties of the first, said sum of $14,000.”
On the same day with the execution of the deed plaintiffs and defendants entered into an additional agreement respecting the payment of the purchase money, in which it was provided that the vendors should “ faithfully defend, at their own proper cost and expense, the actions now pending against them at the respective suits of Francisco Rico and Francisca de Moreno, in respect to the Sausal Rancho in Monterey County, with all proper and due care, and diligence and attention.” And Sherwood “ covenants and agrees with said Leese, that he will, without unreasonable delay, say not to exceed one month, comply with the conditions of a conveyance of the Sausal Rancho, aforesaid, made this day by said Leese and wife to said Sherwood and one Richard Hellmann, by paying to said Leese the $14,000, therein named, as a part of the purchase money unpaid; but it is understood that a dismissal of said aforesaid action of Rico against said Leese and wife, is not to be considered a final decision in favor of said suit in favor of said Leese and wife; provided, said Rico, his heirs or assigns, shall recommence a suit, on the same subject matter, on or before the eleventh day of April next; and the said sum of $14,000 is to become due and be paid upon a final decision of said action of Rico in favor of said Leeso and wife, according to the terms of the aforesaid conveyance and of this instrument.”
On the thirteenth of August, 1860, on the Rico suit being called for trial, the defendants therein (plaintiffs here) moved the District Court to dismiss it, on the ground that the complaint did not contain facts sufficient to constitute a cause of action, and the Court thereupon, without any trial being had upon the merits, dismissed said suit. Ho new action has been commenced by Rico.
The plaintiffs, on or about August 27th, 1860, gave 'notice to defendant of the dismissal of the Rico suit, and on or about September 28th, 1860, demanded of him the $14,000.
On August 28th, 1860, Leese drew an order upon Sherwood and Hellmann, requesting them, out of the balance due on the sale to them of the Sausal Rancho, to pay to D. R. Ashley $1,000, which order was presented to Sherwood about September 4th, 1860, and its payment refused by him, and thereupon he was notified by said Ashley that he should treat the order as an assignment pro tanto of so much of the balance of said purchase money as might he. due, or become due, by appellant to the respondents.
This action was commenced on the twenty-eighth day of September, 1860, by Leese and wife to recover of Sherwood the $14,000, balance of purchase money.
The complaint sets forth, in substance, the terms of the deed and of the cotemporaneous agreement, and avers a performance in all respects of the covenants on the part of plaintiffs, and alleges that by the judgment of dismissal in the action of Rico, and the failure of the defendants therein to appeal, that suit is finally determined, and that no new action has been commenced in relation to the same subject matters.
The answer denies that the action of Rico is finally determined within the meaning of the terms of the agreement, and also states the transaction with Ashley, and alleges that there is a defect of parties by reason of his nonjoinder as party plaintiff, and also by reason of the nonjoinder as party defendant of one Sullivan, who, it is alleged, had at the time of the sale a mortgage on the rancho for some $4,000, which the plaintiffs covenanted to satisfy and discharge, but which was still a subsisting incumbrance.
A jury trial was waived, and the Court found the facts substantially as above stated, and also (in its fourth finding referred to in the opinion) that the action of Rico was finally determined. The mortgage of Sullivan was also found to be a subsisting charge upon the land, which the plaintiffs were bound to discharge.
As a conclusion of law, it was ordered that plaintiffs have judgment for the $14,000, and interest from the time of its demand, less the $1,000 for which the draft had been given to Ashley, and that the money, when collected, should remain with the Clerk, subject to the order of the Court, until the plaintiffs should file evidence of satisfaction of the Sullivan mortgage. From this judgment the defendant appeals.
<p>A dismissal of an action is in effect a final judgment in favor of the defendant. It is a final decision of that action as against all claims made by it, although it may not be a final determination of the rights of the parties, as they may be presented in some other action.</p> <p>On a sale of land by L. and wife to S. a portion of the purchase money was paid, and a balance of $14,000 was by the terms of the deed to be paid when an action then pending by one Rico against the vendors, to recover a portion of the property, should be “ finally decided ” in favor of the defendants therein (plaintiffs here) “as against all claims made by said Rico.\" By a eotemporaneous agreement it was stipulated that a dismissal of the action of Rico should not be considered a final decision, provided a new suit for the same subject matter should be commenced by Rico on or before the eleventh day of April next succeeding the date of the agreement. The action of Rico was, on motion of the defendants therein dismissed, after the eleventh day of April, and thereupon L. and wife brought suit for the $14,000: Held, that as the express stipulation about a dismissal evidently had reference to one procured before the eleventh day of April, a dismissal after that day was not affected by the stipulation, but was to have such force as should result from the other terms of the agreement; that under those terms a dismissal at any time was a final determination of the action, and that plaintiffs were entitled to recover.</p> <p>An assignment by a creditor of a portion of a debt does not make the assignee a joint owner of the whole debt, and he is not a necessary party to a suit for its recovery.</p> <p>Where a vendor of land contracts with the vendee that he will pay off a mortgage previously executed by Mm upon the property, the mortgagee is not a necessary party to a suit for the purchase money brought by the vendor before the mortgage is discharged. A judgment, in such case, retaining the purchase money under the control of the Court until the mortgage is satisfied, is sufficiently favorable to the defendant.</p>
