93 Cal. 588 | Cal. | 1892
Action for the rescission of an agreement for the purchase of certain real estate.
The plaintiffs and the defendant made an agreement, August 29, 1887, by which the defendant agreed to convey to the plaintiffs a tract of one hundred acres of land
Under this agreement, the plaintiffs, within the thirty days therein specified, caused the land to be platted and subdivided in accordance with the terms of the agreement, and placed the laud in the market, and made sales of portions thereof, amounting in value to about twenty-five thousand dollars, for which the defendant executed deeds and contracts to the respective purchasers, and received the amounts for which the lands were sold, applying them upon the notes of the plaintiffs. In January, 1888, an adverse claim was made by certain parties to an, undivided half of the entire tract, and an action was commenced by them in the superior court for the county of Los Angeles against the defendant and the plaintiff's for the purpose of establishing their claim; and on the 7th of June, 1888, judgment was rendered in said action, by which it was adjudged that they were the owners in fee-simple of an undivided half of said land. It is alleged in the complaint, and also found by the court, that “ by reason of said defect in the title of the defendant, and
The agreement between the parties is not merely an executory agreement for the sale of land which is to be conveyed at a future day designated in the agreement, in which the vendor would satisfy his obligation by being able to make the conveyance at the date fixed in the agreement. It is very evident from the terms of this contract that it was not contemplated by the parties that the vendor should be allowed until the expiration of eighteen months from its date within which he might execute the conveyance. The provision therein that the plaintiffs should within thirty days from its date place the land on the market, and that as fast as they should sell it the defendant should convey the parcels so sold to the respective purchasers, and that he should receive the proceeds of such sales in part payment of the notes of the plaintiffs, clearly indicates an agreement on his part that he would make such conveyance upon the de
When the adverse claim to one half of the land was made, it naturally had the effect to impair the ability of the plaintiffs to make immediate sales thereof, which was the purpose for which they had entered into the agreement; and the subsequent judgment affirming the validity of such adverse claim established the inability of the defendant to convey the title of any parcel they might sell, and the court finds that “ by reason of said defect in the title of the defendant, and the said adverse claim, the plaintiffs were absolutely prevented from making any further sales of the said lands.” The court also found that the plaintiffs entered into the contract for the sole purpose of immediately putting the land upon the market, and selling the same in small tracts, and that that purpose was well known to the defendant.
In consideration of these facts, it is manifest that the provision in the agreement that the defendant would make conveyance of the land as he should he requested by the plaintiffs was an essential part of the consideration upon which the plaintiffs entered into the agreement, and that the refusal or inability on the part of the defendant to make such conveyance was such a failure of consideration as to entitle the plaintiffs to a rescission of their agreement. (Civ. Code, sec. 1689, subd. 4.)
The objection that this right of rescission was waived by the plaintiffs by their delay in asserting it cannot be maintained. They were at liberty to consider that the
The objection that the plaintiffs did not at the time of their rescission offer to restore to the defendant everything of value which they had received from him is not sustained by the facts of the case. The specific objection is, that the conveyance which they tendered to the defendant did not include all of the land embraced in the agreement. But the defendant, in pursuance of the terms of the agreement, had himself executed the deeds by which portions of the land had been conveyed, and had himself received all of the consideration for which the conveyances had been made, so that there was nothing which the plaintiffs had received out of the agreement which they could restore to him.
The tender of a deed by the defendant to the plaintiffs subsequent to the commencement of the action, even if such deed had been sufficient to transfer the title, did not revive the. contract. By their rescission the contract had been “extinguished” (Civ. Code, sec. 1688); and the judgment that the plaintiffs were entitled to exercise their right of rescission confirmed the extinguish
The judgment and order denying a new trial are affirmed.
McFarland, J., Sharpstein, J., Garoutte, J., Paterson, J., and De Haven, J., concurred.