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Syllabus.

Under the order of June 20, 1889, directing the receiver to turn over the property to the purchasers at the foreclosure sale, the court undoubtedly had the authority to charge the property with such claims against the receiver as it might thereafter allow, but that reservation of power did not make it the duty of the court to allow the claim of the intervening petitioner.

The lease having no legal validity without the sanction of the court, the equitable considerations in favor of the purchasers of the trust property at the foreclosure sale are stronger than those of the appellant.

We are, therefore, of opinion that there was no error in the decree of the court below, and the same is accordingly

Affirmed.

LOUD v. POMONA LAND AND WATER COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MICHIGAN.

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By an agreement under seal the party of the first part agreed that, after the making of the payments and the full performance of the covenants as agreed to by the party of the second part, he would convey to the party of the second part, certain described lands in California, together with a specified number of shares in the stock of an irrigation company, representing a certain pressure of water, to be delivered to the party of the second part on making payment in full for the land. The party of the second part agreed to pay for the land in fixed consecutive payments, and both parties agreed that the instrument should not be construed as a conveyance, equitable or otherwise, and that, until delivery of the formal deed or tender of all payments precedent thereto, the party of the second part should have no title, equitable or otherwise, to the premises. Held, (1) That these covenants were independent, and that the payment or tender of payment of the purchase price for the land was a condition precedent to the right to the conveyance;

(2) That the party of the second part, on making the contract payments, became entitled to receive the agreed number of shares in the irrigation company, subject to the by-laws of such company, but not stock which represented the title to water or water rights to the extent of such pressure.

Statement of the Case.

THE Pomona Land and Water Company, defendant in error, a corporation duly organized under the laws of the State of California, brought this action of covenant against Henry M. Loud, a citizen of the State of Michigan, to recover various sums of money due upon agreements under seal, embodied in twenty contracts and nine applications for the sale and purchase, at different prices, of separate and distinct parcels of land lying and being in the State of California, together with designated shares of stock in certain irrigation companies.

The twenty contracts declared on in counts one to forty inclusive are substantially the same in form, the difference between them being in the dates, description of land, purchase price, time of payment, and the number of shares of stock in the irrigation companies. The applications declared on in counts forty-one to forty-nine inclusive, while relating to different parcels of land, and varying in dates, purchase price, time of payment, etc., are also substantially alike.

These several contracts and applications need not be separately noticed or considered. One class is represented and illustrated in the contract set out in the first count of the declaration, while the other is set out according to its legal effect in the forty-first count of the declaration. The contract declared on in the first count is as follows:

"This agreement made the eighth day of April, 1887, between Pomona Land and Water Company, a corporation duly organized under the laws of the State of California, and having its office and principal place of business in the town of Pomona, county of Los Angeles, State of California, party of the first part, and H. M. Loud of Oscoda, Michigan, party of the second part, witnesseth, that in pursuance of a resolution of its board of directors, adopted October 25, a.d. 1883, and in consideration of twenty-five hundred and thirtynine dollars, paid by the party of the second part, the party of the first part does covenant and agree that after the making of the payments and full performance of the covenants

Statement of the Case.

hereinafter expressed to be made and performed by the party of the second part, the party of the first part will, in consideration thereof, convey by deed of grant, bargain, and sale, to the party of the second part, his heirs or assigns, the following-described real property situated in the county of Los Angeles, State of California, to wit: Lot seventeen (17) of the northeast Pomona tract, according to the map of said tract duly recorded in book 5, page 461 of miscellaneous records of Los Angeles County, California, estimated to contain forty and .62 acres of land, together with 406.2 shares of stock of the Del Monte Irrigation Company, representing four and .062 inches of water under four-inch pressure, measured from centre of aperture, said stock to be delivered by the party of the first part and accepted by said party of the second part, subject to the by-laws of the said Del Monte Irrigation Company, when payment in full is made for the abovedescribed land.

"The party of the first part reserves the exclusive right of way for laying pipes and aqueducts for conveyance of water; also the right to enter upon said lands and make necessary excavations for laying pipes and aqueducts, and to inspect, repair, replace, and control the same.

"And for and in consideration of the foregoing agreement, and as the purchase price of the above - described premises, the party of the second part do covenant and agree to pay to the party of the first part, its successors or assigns, the sum of ten thousand one hundred and fifty-five dollars, United States gold coin, to be paid in the following

manner:

"$2539 on or before delivery of this contract,
3808 on or before April 8, 1888,

3808 on or before April 8, 1889,

and interest upon said respective sums from April 8, 1887, until paid, at the rate of eight per cent per annum, payable annually; and if not so paid, at option of said company, to be added to principal and bear like interest.

"And the party of the second part, in consideration that

Statement of the Case.

the party of the first part does hereby agree that the party of the second part may at once enter upon, occupy, and enjoy the above-described premises, does further covenant and agree to pay and discharge all taxes, assessments, and water rates that may be levied or assessed during the pendency of this agreement, on the said described premises, and in default of the party of the second part doing so, the party of the first part may pay the same, and before the final payment of purchase money the party of the second part hereby expressly agrees to refund all amounts so paid, with interest from the date of such payment at the rate of one per cent per month.

"And the party of the second part further agrees that during the pendency of this agreement he will not commit or suffer any strip or waste of said premises, or of any improvements now existing or hereafter to be placed thereon; and if any default shall be made in any of the above payments for the space of sixty days after the same shall become due, then it shall be lawful for the party of the first part, its successors or assigns, at their option, to rescind this agreement to convey, to reënter upon, and to repossess said premises and all improvements existing thereon; removing the party of the second part and all claiming under him therefrom, and it is agreed that in such case all payments theretofore made shall be retained by the party of the first part as compensation and liquidated damages for the previous use, enjoyment, and occupation of the premises by the party of the second part. And it is hereby expressly covenanted and agreed between the parties hereto that this instrument is not and shall not be construed as a conveyance, equitable or otherwise, and that until the delivery of said final deed of conveyance or tender of all payments precedent thereto the party of the second part, his heirs or assigns, shall have no title, equitable or otherwise, to said premises.

"It is further expressly agreed that time is of the essence of this contract.

"In witness whereof, the party of the first part has caused its corporate name and seal to be subscribed and affixed by

Statement of the Case.

its president and secretary thereunto duly authorized; and the party of the second part has hereunto set his hand and seal this third day of May, 1887. Executed in duplicate.

"POMONA LAND AND WATER COMPANY,

"[Seal of the Company.]

By H. A. PALMER, President.

"By F. L. PALMER, Secretary.

"H. M. LOUD. [L. S.]

"Sealed and delivered in the presence of

"B. F. NICHOLS."

The applications are in the following form:

Application for Purchase.

"POMONA, CAL., April 15th, 1887.

"Received from H. M. Loud seventy-five dollars deposit on application for purchase of northeast quarter (N. E. 1) of lot twenty-two, (22,) containing ten (10) acres of land according to map of the San Antonio tract, duly recorded in book 3, p. 7, of map records of San Bernardino County, with usual water rights pertaining to said tract, at the price of fifteen hundred dollars and on the following terms; Seventy-five dollars cash deposit as above:

"First payment, $300.00, within sixty days from date; second payment, $562.50, on or before April 15th, 1888; third payment, $562.50, on or before April 15th, 1889; second and third payments to bear interest from date at the rate of eight per cent per annum, interest to be payable annually. In consideration of the premises I, H. M. Loud, hereby agree to purchase said property and pay for the same at the price and on the terms above set out; and in consideration that the Pomona Land and Water Company has withdrawn from the market the above-described land for sixty days, so that the said II. M. Loud may purchase the same at the above agreed on price in case the said II. M. Loud fails or refuses to make said first payment, as above, within the time above mentioned, then the deposit herein made shall be retained by the Pomona Land and Water Company as the estimated damages suffered

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