I concur in the conclusion of the foregoing opinion.
However, I think the transaction, the completion of which appellant has sought to enjoin, cannot properly be termed a sale; it had amounted only to a contract to sell. While the distinction might not be material in the instant action, the inaccurate use of a legal word or expression often leads to confusion in subsequent cases. Opinions may be found *Page 265 where the word "sold" has been loosely applied to transactions which had progressed no further than those in the present case, but they do not fit the definitions of the word as found in text-books, our Civil Code, or such cases as deal with it with care and accurateness. A "sale" is a contract by which, for a pecuniary consideration, called a price, one transfers to another an interest in property. (Civ. Code, sec. 1721) Here the transfer had not been made, and the injunction was asked to prevent it. "An agreement to sell is a contract by which one engages, for a price, to transfer to another the title to a certain thing." (Civ. Code, sec. 1727) This is precisely what the contracting parties did.
A contract relative to land, binding the vendor to make a deed, is a mere agreement to convey. (Ellis v. Jeans, 7 Cal. 409; Roberts v. Abbott, 48 Cal.App. 779, 786 [192 P. 345].) The same opinions hold the transactions therein respectively involved to constitute executory agreements. This, it seems to me, was clearly the legal status of the transaction in this case. The Crescenta company made a bid of $10,595, at the trustee's sale, and until the trustee should have executed its deed, and the transaction thus have become an executed contract by a transfer and by payment of at least part of the purchase price by the vendee, only a contract to sell existed.