Sparks v. Hess.

was paid, and the possession was delivered. A portion of the balance remaining unpaid, the plaintiffs tendered the conveyance and demanded payment. Not obtaining the payment, they instituted the present suit. Between the lien they thus assert, and the ordinary lien of a vendor after conveyance executed, there is a marked difference. In the latter case, the vendor has parted with the legal and equitable title, and possesses only a bare right, which is of no operative force or effect until established by the decree of the Court.

In the present case, the vendors have retained the legal title, and evidently as security for the purchase money. Their position is, in some respects, similar to what it would have been had they executed a conveyance to the vendee and taken from him a mortgage upon the property. A mortgage is in form a conveyance of the legal title, though intended only as security for the debt. Here the title is retained by the vendors for a similar purpose of security. A mortgagee may pursue his remedy at law, or proceed in equity for a sale of the premises. A vendor retaining the title may in like manner sue at law for the balance of the purchase money, or file his bill in equity for the specific performance of the contract, and take an alternative decree that if the purchaser will not accept the conveyance and pay the purchase money, the premises be sold to raise such money, and that the vendee pay any deficiency remaining after the application of the proceeds arising upon such sale. "The vendor," says Chancellor Walworth, in Clark v. Hall, (7 Paige, 385) "has a lien upon the premises sold for the unpaid purchase money; and where there is a decree for a specific performance, if the vendee will not accept the conveyance and pay the purchase money, the premises may be sold for the purpose of raising such purchase money; and if the amount produced is not sufficient to pay what is due, with the costs of sale, the vendee may be ordered to pay the balance; and if there is a surplus, it will be paid to him. Yet it is not a matter of course to direct a sale, unless the vendor asks for it, as the Court may make a decree, as in the case of a strict foreclosure, where the case is a proper one for such a decree, that if the vendee does not pay the purchase money within such time as may be limited for that purpose by the Court, he shall be barred and foreclosed of his right to claim a specific performance afterward." The vendor is at liberty to ask either a decree directing performance, and in case of refusal, a sale of the premises, or a decree barring the right of the vendee to claim a conveyance under the contract. He may, however,

Sparks v. Hess.

insist upon the sale, where the performance is refused, and is not bound to take a mere foreclosure of the vendor's right to a deed. In the case at bar, the plaintiffs tendered their deed under the contract, and as its acceptance was declined, they pray a sale of the premises, and such sale was decreed. The form of the complaint was more that of an ordinary complaint in a mortgage case than a complaint for specific performance, and the decree is not, as it should be, in the alternative. We do not, however, deem it necessary to direct a modification of the decree, as the defendants can still, at any time, arrest a sale and take a conveyance, upon payment of the amount adjudged due of the purchase money, interest thereon and the costs of this suit. (Green v. Fowler et al. 11 Gill and Johns. 104; Haley et al. v. Bennett, 5 Porter, 469; Graham v. McCampbell, 1 Meigs' Tenn. Rep. 56.) The position, that as no mention is made of any land in the contract of sale, nothing was embraced by the contract which could support or feed a vendor's lien, is not tenable. The sale was of the bridge, toll-house, stables and out-houses of every description, and of all the privileges and appurtenances appertaining or in anywise belonging to the bridge. It is evident that the parties, on the one hand, intended to pass, and on the other hand, expected to receive the land upon which the bridge rested and the other buildings were erected. The plaintiffs had constructed the bridge and other buildings as early as 1850, and been in their possession and use until the sale; and upon the payment of the first installment of the purchase money, they delivered the possession to the vendee, with the land which these covered. From this delivery, it is manifest that the parties looked to the use of the property in the position where it was then situated, and did not indulge any expectation of its removal. But aside from this consideration, we are of opinion that the land is embraced in the general designation of the property, and will pass by its conveyance. It is usual, it is true, to convey land, or to contract to sell land by specific designation and description; but this is not essential in all cases. Land will often pass by other terms. Thus, a grant of a messuage, or a messuage with the appurtenances, will pass the dwelling house and adjoining buildings; and also its curtilage, garden and orchard, together with the close in which the house is built. "So much, also," says Sheppard, "may pass by the grant of a house; so that the quantity of an acre of ground, or thereabouts, in orchard, garden and outlet, may pass by either of these names." (Shep. Touch. 94; 4 Green.

Sparks v. Hess.

Cruise, tit. 32, ch. 21, s. 40; Smith et al. v. Martin, 2 Sand. 401, note; Carden v. Tuck, Cro. Eliz. 89.) The true doctrine we conceive to be this: that everything essential to the beneficial use and enjoyment of the property designated is, in the absence of language indicating a different intention on the part of the grantor, to be considered as passing to the grantee; or, as observed by Mr. Justice Story, in Whitney v. Olney et al., (3 Mason, 280) "the good sense of the doctrine on this subject is, that under the grant of a thing, whatever is parcel of it, or of the essence of it, or necessary to its beneficial use and enjoyment, or in common intendment is included in it, passes to the grantee." In that case, Mr. Story held that by the devise of a mill and its appurtenances-not the buildings merely, but all the land under the mill and necessary for the use of it, and commonly used with it, passed to the devisees. In Gilson v. Brockway, (8 N. H. 465) a conveyance with this description: "A certain tenement, being one-half of a corn mill, situated in Washington, in lot number one, with all the privileges and appurtenances," was held to pass not only the mill, but the land on which it was situated, together with such portion of the water privilege as was essential to the use of the mill. "Independent of the word tenement," said the Court, "there is sufficient in this description to convey the land connected with the mill. The term messuage, house and mill, will often include land, if not necessarily so, unless there is something in the conveyance to rebut such a presumption."

In Wise v. Wheeler, (6 Iredell, 196) a deed of trust from one Wheeler, conveying "the storehouse wherein the said Wheeler had a storeroom, occupied by him as a post office, with the out-house and office adjoining," was held to pass the lot upon which the houses were situated, there being nothing in the deed to control the description, and exclude the lot. In Allen v. Scott et al., (21 Pick. 25) land was conveyed by a mortgage deed, with all the buildings standing thereon, except the brick factory, and it was argued that the exception extended only to the factory building, and not to the land under it, or the water power appurtenant thereto; but the Court held that the argument could not be maintained, and that the land and water privilege were reserved with the factory, and did not pass under the deed-observing that the exception was to be construed according to the meaning of the parties, if not inconsistent with the rules of law, and that it could not be supposed that the mortgagor reserved his portion of the building for the purpose of removing it, as that, if it could be done, would be nearly a

Sparks v. Hess.

total destruction of the property, and that he could hold and enjoy nothing of value under the exception, unless he could occupy the building as it stood previous to the execution of the mortgage. (See also Doane v. Broadstreet Association, 6 Mass. 333; Blake et al. v. Clark, 6 Greenl. 436; Forbush v. Lombard, 13 Met. 109; Swartz v. Swartz, 4 Barr, 353.)

Other authorities to the same effect might be cited, but the above are sufficient to show the correctness of the doctrine we have stated, that everything essential to the enjoyment of property granted is to be considered, in the absence of language indicating a different intention on the part of the grantor, as passing with it, either as parcel thereof, or appurtenant thereto. Nor is this doctrine inconsistent with any of the authorities cited by the appellants, as to the distinct ownership which may exist with reference to the land and the structures thereon. It frequently happens that the ownership of the land may reside in one person, and the ownership of the structures in another. In all cases of this kind, the buildings are erected by permission of the owner of the land, for the use of the builder, and generally under a mutual expectation by the parties of its removal, or of compensation being made for it to the builder, or of the latter ultimately acquiring the title to the land.

Thus in Russell v. Richards et al., (1 Fairfield, 429) the mill was erected by the permission of the owner of the mill privilege, after a parol contract had been entered into with the builders for a sale to them of the privilege. In Wells et al. v. Bannister et al., (4 Mass. 513) the house was erected by the son for his own convenience and accommodation, on the land of his father, and by the permission of the father, and under an expectation that the land would be devised by his father to him. In Ashmun et al. v. Williams, (8 Pick. 402) the building was erected on land, the fee of which was in the town of Northampton, under a contract with the builder that the town should occupy part of it, at a specified rent, and have the right to purchase it at an appraised value. In Smith et al. v. Benson et al., (1 Hill, 176) the house was erected on rented property, with an understanding that the builder was to have from three to six months to remove the same.

We do not perceive the force of the objection to the decree in relation to the road dug on each side of the bridge. The privilege of this road is designated in the contract as sold to the defendant Hess, and it would probably have been included, without specific designation, among the appurtenances of the bridge. It does not appear that the

Burdge v. Gold Hill and Bear River Water Co.

road was other than a private one, constructed by the plaintiffs over their land. If the public have any interest in it, nothing will pass under the sale which can destroy or impair that interest. The objection does not lie in the mouth of the defendant, who contracted to purchase its privilege from the plaintiffs, nor with those who claim under them with notice.

Judgment affirmed.

BURDGE v. GOLD HILL AND BEAR RIVER WATER CO.

WHERE a motion for new trial is denied, and the record contains the statement used on such motion, but no statement on appeal from the judgment, this Court can only examine the action of the Court below in denying the motion the judgment cannot be reviewed except through the order made upon the motion, and from this order, no appeal having been taken, the case stands on the judgment roll.

Lower v. Know, (10 Cal. 480) affirmed.

APPEAL from the Eleventh District.

There was no statement on appeal, but a statement used on motion for new trial. The appeal was from the judgment alone.

Thos. Sunderland, for Appellant.

Tuttle & Hillyer, for Respondent.

FIELD, C. J. delivered the opinion of the Court- BALDWIN, J. and COPE, J. concurring.

The statement contained in the record was used on the motion for a new trial, and we can only examine the action of the Court below in denying the motion. The judgment cannot be reviewed except through the order made upon the motion, and from such order there is no appeal. (Lower v. Knox, 10 Cal. 480.) This leaves the case to stand upon the judgment roll, and as this discloses no error, the judgment must be affirmed.

So ordered.