Urban v. Yoakum

The plaintiff commenced an action against the defendants to quiet title to a tract of land in Los Angeles County. The defendants appeared and answered and filed a cross-complaint. The plaintiff answered the cross-complaint and the parties went to trial on the issues so framed. The trial court made findings in favor of the plaintiff, and a judgment was entered thereon. The defendants made a motion for a new trial, the motion was denied and they have appealed from the said judgment under section 953a of the Code of Civil Procedure.

Prior to the sixth day of July, 1922, Marie Vereh owned lots 26, 28, and 30, and the easterly 18.735 feet of lot 32 in block 23 of “Park Tract” in the city of Los Angeles. On

A comparison shows that the dates when the plaintiff was bound to make his payments to Marie Verch coincided with the dates when the defendant was bound under the terms of his contract to make payments to the plaintiff.

If the defendant made his payments pursuant to the terms of his contract, and if the plaintiff in turn paid the moneys over to Marie Verch, then it would have transpired that the entire tract would have been encumbered in the sum of $7,625 and no more, and on December 1, 1922, the defendant would have been entitled to a deed to the portion so purchased by him, free and clear of all encumbrances except his pro rata of the said sum of $7,625.

The defendant did not make his payments on time. The plaintiff claimed that he made numerous requests. The defendant contended that he did not. The defendant also contended that the plaintiff waived the provisions of the contract fixing the dates of payments by accepting certain payments after the date on which the payments were, according to the terms of the contract, due and payable. These respective contentions will be hereinafter referred to.

On January 15, 1924, Marie Verch demanded payment by the plaintiff of the installment which was due under his contract with her. He did not have the money to make the payment and therefore sacrificed some properties by making

The defendants call to our attention the fact that the contract between the plaintiff and the defendant did not contain a covenant to the effect that time was of the essence thereof. Thereupon they also call to our attention that at the time of the trial they tendered to the plaintiff the said sum of $4,500, together with all items of interest then due and that the plaintiff refused to accept it and that thereupon they deposited the same in court conditioned upon the execution of a deed by the plaintiff and a certificate of title showing that the land was subject to an encumbrance of $7,625, and no more.

The plaintiff’s complaint pleaded in the ordinary form a cause of action to quiet title. The defendants interposed an answer which contained denials of the material allegations of plaintiff’s complaint. It also pleaded as an affirmative defense the execution of the contract hereinabove mentioned, dated July 10, 1922, and the assignment of an undivided one-half interest therein by F. B. Yoakum and B. A. Yoakum, and that the defendants had fully performed said contract. The answer also pleaded another affirmative defense in which they alleged that they had repeatedly demanded a deed and tendered the payments provided in their contract and that they had at all times been ready, willing, and able to pay the said sums, but that the plaintiff had refused to execute to them the deed provided for in the contract. Then followed the allegation: “That by reason of the foregoing facts plaintiff ought to be and is in fact estopped from quieting his title in and to said lands against the defendants or either of them.” The defendants filed a cross-complaint, in which they alleged the execution of the

The defendants assert that the mortgage note for $4,500 was not paid before the plaintiff made his tender and demand, and therefore the defendant was within his rights in not paying to the plaintiff $4,500 and in refusing to accept a deed to property that was mortgaged for more than $7,625. The point is without merit. He should have made the payment as demanded and, at the same time, seen to it that he got a deed together with a certificate showing the land not to be encumbered in any greater sum than $7,625, all as set forth in the contract. Until he did so the plaintiff was not in default and the facts were insufficient to constitute a defense for the defendants. (Maloney v. Houston, 51 Cal. App. 585 [ 197 Pac. 661 ]; Griesemer v. Hammond, 18 Cal. App. 535 , 541 [ 123 Pac. 818 ]; Mills v. Garner, 85 Cal. App. 399 [ 259 Pac. 479 ]; Lemle v. Barry, 181 Cal. 6 , 9 [ 183 Pac. 148 ].)

In the next place he asserts that time was not of the essence of the contract between the defendant and the plaintiff and, whether it was or not, by accepting installments after they fell due, the plaintiff waived the due date, December 1, 1922, and therefore before the plaintiff could make any legal demand on the defendant he was bound to reduce the indebtedness to $7,625. The point is illogical and it is a commixture of several points, all of which must be ruled against the defendants. The issues and findings present no question of waiver. (Wienke v. Smith 179 Cal. 220 , 225 [ 176 Pac. 42 ].) If there was a waiver as to the date when the defendants should have made their payment, such waiver was pertinent to the time of payment, but was not pertinent as to the amount of encumbrance remaining on the property on the date the deed should have been delivered—the contract still provided the covenant on that subject. Under the terms of the contract, the defendants were not bound to accept a deed to the property subject to an encumbrance in excess of $7,625. Such was the clear wording of the contract. The plaintiff has never contended to the contrary. On the other hand, the plaintiff was not bound to deliver a deed until he was paid. The two acts were concurrent conditions. (Civ. Code, sec. 1437.) Either party, on and after December 1, 1922, could have tendered

According to the terms of the contract the defendants should have made their payment December 1, 1922. The defendant F. B. Yoakum testified that in conversations, before and after the contract was signed, the plaintiff told him the payment could be made upon receiving thirty days’ notice. The trial court struck out that portion of the testimony. As to the conversation held before the contract was signed, it was merged in the contract. (Civ. Code, sec. 1625.) As to the conversation held after the contract was signed, it could not alter the written instrument. (Civ. Code, sec. 1698.) If it be claimed that the latter constituted an executed oral agreement, it is clear that the agreement was not executed and that there was no consideration therefor. (Benson v. Shotwell, 103 Cal. 163 , 167 [ 37 Pac. 147 ].)

The next point presented by the defendants is that the facts of this case are such that an action to quiet title was not the proper remedy. They cite Benson v. Shotwell, 87 Cal. 49 [ 25 Pac. 249 ], That ease involved a set of facts that is quite different from the instant case. It is not helpful.

Then the defendants assert that under the facts the plaintiff could have conveyed to them a good and sufficient title even though the plaintiff’s wdfe did not join in the deed. The assertion may be accepted, but it leads nowhere. The position taken by the plaintiff was that no duty rested on him to convey to the defendants anything, not that he did not have the power.

Finally the defendants assert that forfeitures are not favored and that courts of equity will relieve parties from defaults. That is true when equitable grounds there

The judgment is affirmed.

Nourse, J., and Koford, P. J., concurred.