Craggs v. Earls

■Opinion of the court by Burford, C. J.: The first contention by plaintiffs in ■error is that Earls could not recover or enforce a vendor’s lien until he had surrendered possession of the land. If this were an action to enforce specific performance of a *465 contract, this contention would probably be well founded. But we do not think the right of the plaintiff, Earls, to recover balance of purchase money was at all dependent upon the question of possession. The debt was due, and it was unpaid. This gave him a right of action. The value of the possession was a legitimate matter of counter-claim or set-off, and was a proper-matter of defense. The record discloses the fact that the failure to deliver possession was pleaded in this case, and the value of the use of the land set up as damages. No damages were proyed on the trial; hence this defense failed. The authorities cited by counsel for plaintiffs in error are not applicable to this case. In each of the cases cited the title remained in the vendor, and the case was either a suit to recover purchase money or enforce specific performance of contract. In this case the title had passed to the vendees, and this action is for the purpose of enforcing a vendor’s lien for unpaid purchase money. Our statute conclusively settled the question, and leaves no room for argument. Section 1, ch. 34, p. 164, Sesión Laws of 1895, provides: “One who sells real property has a special vendor’s lien thereon independent, of possession, for so much of the price as remains unpaid and unsecured, otherwise than by the personal obligation of the buyer, subject to the rights of purchasers and incumbrancers in good faith without notice.” Whatever the rule may be in other jurisdictions, the statute fixes the rule which must govern in this Territory. It is further contended that Mitchell was the agent of Earls, and that Craggs delivered the note, money, and horse to Mitchell for Earl®, and that Mitchell accepted *466 them; consequently this was a payment to Earls, and a satisfaction of the contract. The facts do not warrant this conclusion. The horse was to he delivered to Earls at Earlsh-oro. He did not authorize Mitchell or any one else to receive the horse at any other place. Mitchell took the 'horse to Earlsboro, and tendered him to Earls. He must have been acting for Craggs in making this tender or offer to deliver. Earls refused ‘the horse tendered because it was not the kind of a horse they had agreed to deliver him. The whole question was before the trial court on the facts, and testimony was introduced on both sides. We cannot disturb the finding of the trial court upon controverted questions of fact. The only other assignment of error presented in the brief of plaintiffs in error is that the court erred in the assessment of damages. The court permitted the defendants below to offer evidence of the usable value of the possession of the land from date of the conveyance to- the time of trial. There was no proof of any damages by reason of the failure to- deliver possession.. The question of what the agreement ’between the parties was, it being an oral agreement, was a controverted one on -the trial. The court found that the agreed- purchase price of the land was $1,600, and the agreed- price of the house was $750, and that, by reason of the failure to deliver the horse, there was yet due on the purchase price of the land the' sum of $750. Upon an examination of the evidence in the record, we are of the opinion the trial court committed no error. The judgment of the district court is affirmed, at the costs of the plaintiffs in error. Burwell, J., having presided in the court below, not sitting; all of the other Justices concurring.