“Constitution, Article 8, §§ 5 and 6, relating to the disposal of school lands, provide that the purchaser shall pay one-fourth of the price in cash and the remaining three-fourths in installments, but all such subdivided lands may be sold for cash, provided that upon the payment of the interest for one full year in advance the balance of the purchase price may be paid at any time, and that no “sale” shall operate to convey any title to any lands for 60 days after the date thereof, and that no grant shall issue until final payment. Laws 1890, p. 296, chap. 136, provides for sales in pursuance of the constitutional provisions, and for the issuance of “contracts of sale,” and declares that whenever the purchaser of any tract shall default in the principal or interest, or shall violate any of the provisions of the contract of sale, such sale may be set aside. Held, that a purchaser who had made the first payment, and received a contract of sale from the commissioners, had an interest in the lands, which was subject to execution under Rev. Code Civ. Proc. 1903, § 336, subjecting to execution “all goods, chattels, moneys and other property, both real or personal, or any interest therein, of the judgment debtor.”
We think, under our statute, which is practically the same as that of South Dakota, that an execution could be levied on the interest of the vendee in land purchased under a contract for deed. This could not be done unless the vendee has an interest or estate in the land, and we think it clear that he has such interest; and we think the rule in this regard, announced in the Miller v. Shelburn Case, is not correct. If it be true, that the relations between the vendee and vendor in a contract of purchase are wholly personal, then, though the vendee wholly performs, according to the terms of the contract, the vendor may refuse to convey to him by deed; or, if the vendor may deed it to a third party, or, if he is under no obligations to carry out his contract with the vendee, if the relations are personal only, the vendee’s only remedy in all such cases would be an action for damages. But we know this is not true, for, when the vendee has performed according to the terms of the contract, he can compel the vendor to deliver title by an action of specific performance against him; and this, he may do, and may have relief by specific performance, even though the vendor has transferred the land by deed to some third person, unless the third person is an innocent purchaser.
It would seem, that such action could be maintained only on the theory that the vendee is the equitable and beneficial owner, and that the
