59 Cal. 502 | Cal. | 1881
Ejectment to recover a tract of land in Los Angeles County. The decision of the Court is as follows:
“ 1. On the twenty-seventh day of April, 1876, and for a long time prior thereto, Alvinza Hayward was seised in fee and was in possession of that certain tract of land situate in the County of Los Angeles, State of California, and described as follows, to wit: The north one half of section 16, and the north one half of the east one quarter of section 15, township four north, range 13 west, San Bernardino meridian, being known as the Soledad Mills property, consisting of quartz mills and property known respectively as the Searles Mills and Polk and Kohler Mills property, and the Eureka Mining Company’s Mills, together with the machinery, water rights, easements, servitudes, hereditaments, and all other rights, privileges, and franchises now exercised therewith or thereunto belonging.
“ 3. That thereupon, and under said contract, and by virtue of the permission thereby given, the said Walker entered into possession of the premises in controversy, and has ever since remained in possession of the whole of said premises, and claimed to hold the same under and by virtue of the said contract.
“4. That the said Walker, although thereto frequently requested, has wholly failed, except as to the said five hundred dollars, to comply with the covenants, conditions, and provisos upon which he was to become the purchaser of the said premises from the said Hayward, and has failed and refused to comply with the conditions of his said agreement, or to pay his said promissory note, or any part thereof, although the same is long past due.
“ 5. On the seventh day of February, 1877, by reason of the failure of Walker to comply with the conditions of the
“6. That on the twenty-seventh day of February, 1877, and after the rescission of said contract, Hayward, while seised in fee and entitled to the possession, conveyed the said described premises for the sum of two thousand five hundred dollars to one B. S. Binney, by a good and sufficient deed, the same being recorded in Book 51, page 318, of Deeds, Records of Los Angeles county. And on the sixth day of March, 1877, the said Binney, being the owner and entitled to the possession of the said premises, conveyed the same for a valuable consideration to E. B. Gethin, the plaintiff herein, by deed recorded in Book 52, page 417, of Deeds, Records of Los Angeles county; and from the foregoing findings of fact the Court draws the following conclusions of law: That plaintiff is entitled to judgment against the defendant for the recovery of the possession of the said described premises and for costs of suit.”
The testimony shows that the contract of sale was rescinded. The money (five hundred dollars) paid, and defendant’s note for the balance (two thousand dollars) were in Hayward’s hands, subject to the order of defendant, and were offered to be paid and delivered to him in case he did not pay the balance (two thousand dollars) at the end of ten days. He was notified that they were subject to his order in case the balance was not paid as above mentioned.
As to the point, that defendant was never in default for
The testimony shows that the tender of the balance due by defendant to Downey was not made until after the rescission and sale and conveyance to Binney, and when the matter had passed out of Downey’s hands and he was no longer the agent of Hayward. Such tender was of no avail.
The further point is made, that the Court admitted parol evidence of a written notice delivered to Ganahl without accounting for the original, and without it being shown that Walker received notice. The evidence tends to show that Walker received the notice from Ganahl. There is no testimony to the contrary.
It is not necessary to give notice to the opposite party to produce a writing, which is itself a notice. (C. C. P., § 1938; 1 Greenl. Ev., § 561.) Parol evidence is also admissible to prove the contents of such notice. (C. C. P., §§ 1855, 1938.) The certified copies of the deeds from Hayward to Binney, and Binney to plaintiff, were properly admitted in evidence under the Code of Civil Procedure. (Canfield v. Thompson, 49 Cal. 212; C. C. P., §§ 1888, 1893, 1894, 1919, 1855, subd. 4.)
There is no error in the record, and the judgment and order ■ are affirmed.
Sharpstein and Myrick, JJ., concurred.