165 P. 926 | Cal. | 1917
Plaintiff sued to have a certain contract for the sale by it of land to the defendant declared at an end by reason of defendant's breach thereof; to obtain a decree for the removal of defendant from the land involved in the contract; and to quiet title to said real property. Defendant demurred to the complaint, and the demurrer being overruled, answered and also pleaded a counterclaim. Demurrers of plaintiff to defendant's pleadings were sustained without leave to amend, and after the taking of testimony judgment was entered in favor of plaintiff as prayed. From this judgment defendant appeals.
The only objection to the sufficiency of the complaint which is urged by appellant's counsel in their briefs is that the pleading does not indicate whether or not the defendant was served with notice to quit the premises prior to the commencement of the action. This objection is without merit. The contract, which was fully set forth in the complaint, provided that if any installment of the purchase price, interest, or taxes should become due and be in default for sixty days, Los Molinos Land Company might terminate all of the rights of the holder of the contract by notice in writing served personally or by mail to the last known postoffice address of said holder. The complaint, after setting forth the default of *307 defendant for more than sixty days in the payment of an installment of interest, avers that he was notified, on a day specified, in writing by mail at his postoffice address at Los Molinos, California, that his rights under the contract were terminated, the contract canceled, and that all payments theretofore made were forfeited. This was a sufficient compliance with the terms of the agreement, and the court properly overruled the demurrer to the complaint.
The complaint contains allegations to the effect that plaintiff and defendant executed the pleaded agreement; that defendant went into possession of the land under said contract; that he was then occupying the premises; that certain interest had become due for a period of more than sixty days; that said interest was still unpaid; that plaintiff, exercising its option given by the terms of the contract, had declared the said agreement at an end and the payment previously made on account of the purchase price forfeited. None of these allegations was denied by the answer, but defendant pleaded certain alleged fraudulent representations operating to induce defendant to purchase the land; the offer of defendant, on discovery of the fraud, to rescind the contract and restore the land on repayment of the amount paid on the purchase price; and plaintiff's refusal to accept the terms so offered. The counterclaim sets up the alleged fraudulent acts of plaintiff in inducing defendant to enter into the contract and prays recovery of $350, the initial payment on the purchase price, $350, alleged to have been expended by defendant in efforts to produce crops on the property, and one hundred dollars counsel fees.
The demurrers to the answer and counterclaim were properly sustained. A purchaser wishing to rescind a contract of this sort may only do so by surrendering the land to the vendor. He is then in a position to sue for the portion of the purchase price previously paid. Or if he chooses to retain possession under the contract, he may only do so by paying the purchase money and the interest according to the terms of the agreement. (Gervaise v. Brookins,
Our conclusion upon this subject makes it unnecessary to discuss the sufficiency of defendant's allegations of fraud as matters of pleading.
The judgment is affirmed.
Henshaw, J., and Lorigan, J., concurred. *309
