When the respondents failed, on the sixth day of March, 1890, to make and tender appellant a deed to the premises described in the complaint, as they had bound themselves to do in their several contracts, then the contracts ceased to exist, and no recovery could be had on them by any of the parties thereto. The several sums paid thereon was money had and received by respondents for the use and benefit of appellant, and subject to be recovered by him. (Cleary v. Folger , 84 Cal. 316; 18 Am. St. Rep. 187; Drew v. Pedlar , 87 Cal. 443; 22 Am. St. Rep. 257; White v. Buell , 90 Cal. 177.)          Jones & Carlton, and R. L. Horton, for Appellant.

. As such, the Report determines, complete diversity is lacking, requiring remand [ECF No. 27 p. 19]. I. Consideration of Amended Complaint to Determine Diversity Jurisdiction

In response to Defendants' argument that injunctive relief cannot be asserted as a standalone count [ECF No. 25 pp. 7-8], Plaintiff agrees to withdraw Count IV as a separate count but maintains the request for an injunction under the FTSA [ECF No. 27 p. 19]. On November 14, 2022, Defendants filed the instant Motion, seeking dismissal for lack of Article III standing and for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure [ECF No. 25].

         An action to quiet title does not lie by a vendor under a contract to convey when he has failed to return what money he has received under the contract. (Chandler v. Chandler , 55 Cal. 269.) When a contract for the purchase of land has been terminated, the vendee, or his assignee, is entitled to recover from the vendor, whatever the latter has received under the contract. (Drew v. Pedlar , 87 Cal. 443; 22 Am. St. Rep. 257; White v. Buell , 90 Cal. 177; Phelps v. Brown , 95 Cal. 572; Cleary v. Folger , 84 Cal. 316; 18 Am. St. Rep. 187.) An attaching creditor is subrogated to the rights of his debtor against the garnishee, and may recover against the latter.