Randolph v. Wise

Action in ejectment. Plaintiff appeals from an order granting defendant’s motion for a nonsuit.

It appears from the evidence that plaintiff was the owner of an interest in certain real property held in the possession of the defendant. The property was conveyed by deed to the plaintiff, a married woman. On June 17, 1921, plaintiff entered into a written agreement wherein plaintiff agreed to sell lot 6, block 7, of C. S. Miles’ Addition to Huntington Park, for the sum of $950, and to execute and deliver a good and sufficient deed of grant, bargain, and sale therefor. Plaintiff’s husband having disappeared, she was unable to secure his signature to the deed and could not deliver title on which the title company would issue a certificate. On February 23, 1922, plaintiff was granted a decree of divorce, the court holding that the property involved was community property, and awarding the plaintiff an undivided one-half interest therein. Defendant paid no part of the purchase price of $950, but remained in possession of the property, having made some improvements thereon after plaintiff had deposited with defendant the sum of $300 as a guaranty that she would give clear title. Some time during the fall of 1922, defendant tendered to plaintiff’s attorney one-half of the contract price of the property for a deed to a one-half interest in the property. This offer was not accepted. Plaintiff served upon defendant a written notice demanding possession of the premises

[1] Appellant’s first contention is that the court erred in holding that the evidence introduced by plaintiff failed to make out a cause of action in ejectment, citing cases which hold as follows: A purchaser of land in possession thereof under a contract of sale by the terms of which the vendor is to execute and deliver to the vendee a good and sufficient grant, bargain, and sale deed to the property, together with an acceptable certificate of title showing the property to be free and clear of all encumbrances, cannot, upon the failure to convey a good and perfect title, retain both the land and the purchase money until a perfect title shall be offered to him. He must pay the purchase price according to the contract and receive such title as the vendor is able to give, if he chooses to retain the possession of the land. (Luther v. Clark, 58 Cal. App. 59 [ 207 Pac. 1033 ]; Garvey v. Lashells, 151 Cal. 526 [ 91 Pac. 498 ]; Haile v. Smith, 128 Cal. 415 [ 60 Pac. 1032 ]; Worley v. Nethercott, 91 Cal. 512 [ 25 Am. St. Rep. 209 , 27 Pac. 767 ].) If a perfect title was to be conveyed and the vendor is unable to give such a title, the vendee has appropriate remedies; but he cannot keep both the property and the purchase money. (Garvey v. Lashells, supra.) Under such a contract, if the vendee surrenders possession he may recover the value of his improvements, after deducting the fair rental value of the land. (Haile v. Smith, supra; Worley v. Nethercott, supra; Garvey v. Lashells, supra.) If the vendee fails and refuses to pay the purchase price, or to rescind the contract and restore the possession to the vendor, he is liable to an action in ejectment by the vendor. (Garvey v. Lashells, supra; Haile v. Smith, supra.) The foregoing rules are well settled, but under the proof plaintiff is not entitled to the benefit of

[2] Appellant insists that the court erred in refusing to allow plaintiff’s witnesses to testify to transactions and conversations had prior to the execution of the contract on June 17, 1921, on the ground that parol evidence is admissible to show the situation of the parties and the circumstances surrounding the execution of the instrument. Plaintiff offered to show that the deal between plaintiff and defendant had its inception in January, 1921; that escrow instructions were placed with the title company during the latter part of January, 1921; that the plaintiff received word from the title company that they would not issue a certificate of title to the property, and that she was the owner of but an undivided one-half interest therein; that the plaintiff immediately communicated this fact to defendant. The trial court sustained defendant’s objection to this testimony. We find no error in this ruling, since, notwithstanding the fact that both plaintiff and defendant, according to this offer of proof, had received notice that the title company refused to issue a certificate, yet subsequently they entered into the written contract received in evidence, which provided for a conveyance of the property from plaintiff to defendant and wherein plaintiff agreed to sell and convey and defendant agreed to buy the premises; the consideration to be paid through the title company, upon delivery to them of an acceptable certificate of title showing the title to be vested in the defendant as trustee, free and clear of all encumbrances. We fail to see how the testimony offered could have affected the absolute

It is ordered that the judgment be affirmed.

Conrey, P. J., and York, J., concurred.