Civ. No. 3648. | Cal. Ct. App. | Dec 14, 1920
This action was brought by plaintiffs to quiet title to the land described in the complaint. Defendants in their amended answer allege that the parties entered into an agreement, by the terms of which plaintiffs agreed to sell and defendants to purchase the property here involved for the sum of $2,400, payable as follows: One hundred and twenty-five dollars upon the execution *394 of the agreement, and fifty dollars thereafter monthly until the full sum of $900 was paid, and the assumption by defendants of a mortgage upon the property amounting to the sum of $1,500; that the defendants further agreed to pay all taxes assessed against the property and the interest on the mortgage from the date of the same. The agreement provided that time was of the essence of the contract, and in the event of failure to comply with its terms the plaintiffs would be released from all duty to convey, and defendants should forfeit all right to any sums of money paid thereunder.
The answer further alleged the payment by defendants of four different installments amounting to the sum of $350, together with the dates of payment, and a statement of certain amounts paid by defendants to plaintiffs to apply upon interest on the mortgage of $1,500. These payments were made at different dates between December, 1916, and April, 1918. They were seven in number, and aggregated the sum of $165. Possession in defendants was also alleged, and it was recited in the answer that none of the payments to apply on the principal sum due under the agreement were made when due; and that by the acceptance of such payments when overdue plaintiffs waived the condition in the agreement that time was of the essence thereof. By other recitals the defendants claimed that under the agreement final payment became due on the eleventh day of March, 1918, and that plaintiffs had not tendered to defendants any deed to the property or a certificate of title as provided for in their agreement.
The cause was tried, and judgment went for plaintiffs. A motion for a new trial was made and denied. The case is here appealed on the judgment-roll alone.
Defendants rely for reversal upon the sole ground of uncertainty and inconsistency in the findings. In this behalf it is first claimed that the findings are inconsistent for the reason that in one portion thereof the court recites that plaintiffs were in possession and in another part that defendants were in possession of the property. Conceding this to be true, it can avail appellants nothing, for the finding upon the question is immaterial. [1] It is not now necessary in order to maintain an action to quiet title that an owner should be in possession. (Reiner v. *395 Schneider,
Again, it is claimed that the findings are inconsistent on the question of ownership. The record does not support this contention. Upon this question the court made a specific finding as follows: "That plaintiffs in the above-entitled action are now and for a long time prior hereto have been the owners . . .," etc., and further, "that the defendants have not any estate, right, title or interest whatever in or to said premises or any portion thereof," and again, "the court further finds that the plaintiffs above named are the owners of the said premises." The findings further show the existence of the agreement, the amount of payments made thereunder, together with the dates when made, the default of the defendants under the contract, and a recital that plaintiffs had not waived the conditions as set forth in the agreement by accepting payments after the same had become due, and that plaintiffs had not tendered a deed and the certificate of title provided for upon final payment. Appellant insists for this reason that the findings are contradictory and self-destructive in that they clearly show that every payment upon the principal sum having been made subsequent to its due date, plaintiffs waived the condition that time was of the essence of the contract, and that the right of forfeiture provided for could only be restored by giving a definite and specific notice of adherence thereto, and the findings not showing that such notice had been given, that they clearly show a waiver of this condition. It is further claimed that the finding that plaintiffs had not tendered a deed is fatal to respondents' case. We are cited toStevenson v. Joy,
For the reasons given the judgment is affirmed.
Richards, J., and Seawell, P. J., pro tem., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 10, 1921.
Shaw, J., Lawlor, J., Wilbur, J., Lennon, J., Olney, J., and Sloane, J., concurred. *397