Eldridge v. Burns

Opinion

Plaintiff, Donald F. Eldridge, the purchaser of some 750 acres of land, and Marian T. Eldridge, his wife, have appealed from an adverse judgment in an action in which they sought a decree compelling the defendants, Alyce Lee Bums (the seller of the property and payee of a note secured by a deed of trust, for the balance of the purchase price), Emmett Bums (her husband who filed a disclaimer in the case), the trustee under the deed of trust, and a bank holding a collateral assignment of the purchase money note, to convey to the purchaser a portion of the land under provisions of the deed of the trust which allegedly gave the purchaser the right to a release and partial reconveyance for payments on the purchase price he had made. The plaintiffs also sought to enjoin a threatened foreclosure against the whole of the property that had been subjected to the hen of the deed of trust.

The question of the appealability of the judgment denying the plaintiffs relief has been raised by the parties and determined adversely to the defendants. On the merits the plaintiffs contend that the trial court erred in failing to award them specific performance of a release of property selected and described in literal compliance with the release clause contained in the deed of trust given for the unpaid balance of the purchase price of the property; that it erred in determining that the buyer was not 'entitled to demand a release of the property because he was in default in the payment of taxes and assessments, and subsequently after demand, defaulted in the payment of principal and interest; that it erred in concluding that the release as demanded was unfair; and that it erred in refusing to grant the buyer alternative relief. The seller defends the action of the lower court and insists on her right to the property free and clear of any obligation under the release clause.

On review it is determined that the right to release of the property was not forfeited by the subsequent default of the buyer; that the clause on its face was sufficiently certain to give rise to an obligation to release property; that, because of supervening equitable doctrines protecting the rights of the seller-lender, the demand of the buyer under the clause could not be specifically enforced; and that the trial court erred in not recognizing that the buyer was entitled to some equitable relief to prevent a forfeiture and undue enrichment of the seller, and in failing to enjoin a sale of the whole property without so providing. The judgment must be reversed.

cross-complaint was filed by those defendants for foreclosure, for a deficiency judgment and for waste. At the trial following the taking of evidence, but before submission of the case, the defendants dismissed their cross-complaint with prejudice. The court so found and adjudged, and also ruled that no attorney’s fees were payable to defendants by virtue of that pleading.

The court having found that the plaintiffs were not entitled to enjoin the exercise of the power of sale under the deed of trust further found: “19. The court finds that there may be other issues relating to this matter which may arise prior to the foreclosure sale, including attorneys fees, questions regarding the assessments and other matters, and, therefore, the court finds that it would be equitable to retain jurisdiction in the event an issue or dispute arises between the parties and to further determine attorneys fees at the expiration of the foreclosure sale. [¶] 20. The court finds that the defendants have incurred substantial fees in connection with this action and reserves the right to award defendant said fees at a more meaningful time after foreclosure has taken place.” and “[¶] 22. The court finds that defendant is entitled to reasonable attorney fees and costs in connection with trial of this matter and in connection with the foreclosure of the subject property, in an amount to "be determined upon appropriate motion by the defendant before the above entitled court.” It concluded, “13. That the court shall retain jurisdiction in the form of an interlocutory judgment for the purposes of retaining jurisdiction to resolve disputes between the plaintiff and defendant up until the time of the foreclosure sale, and for the further purpose of determining attorney fees incurred by defendant together with any issues involving assessments and other matters which may arise between the parties.”

“Unless expressly authorized by law an appeal does not he from an interlocutory judgment. [Citation.] The reason is the ‘one final judgment’ rule, ‘ “a fundamental principle of appellate practice in the United States. The theory is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await final disposition of the case.” ’ (Efron v. Kalmanovitz, 185 Cal.App.2d 149 , 154 [other citations omitted].)” (Degnan v. Morrow (1969) 2 Cal.App.3d 358 , 362 [ 82 Cal.Rptr. 557 ]. See also 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 52, p. 4066.) The plaintiffs contend that since the judgment, although labeled “Interlocutory Judgment,” disposed of all the issues of the case, except

either of the writings to the effect that a deed could not be obtained unless it was demanded at the time the money was paid or that a failure to make such concurrent demand should operate as a waiver of the right to a deed” {id., p. 556); and “We find no language that can be construed to declare that a deed or release could not be demanded on account of a payment made after maturity.” {Id., p. 557.) In the latter connection the opinion indicated, “ ‘Courts are disinclined to construe the stipulations of a contract as conditions precedent, unless compelled by the language of the contract plainly expressed’ [citation], and particularly so when the result would be to work a forfeiture. [Citation.]” {Id., p. 556.)

In reversing the judgment the court indicated: “The sum of $450 per lot for the lots for which a deed was demanded is the limit of the recovery to which the plaintiff would be entitled.” (Id., pp. 558-559.) . From this case we distill that a release clause if otherwise valid, entitles the buyer, who makes a payment in accordance with its terms, to either the land, or at least to the return of the payment made if a reconveyance is refused; and that such rights are not lost by the buyer’s subsequent default in payments on the purchase price.

In Conley v. Poway Land & Inv. Co., supra, 232 Cal.App.2d 22 , the trial court ordered the defendant buyer to reconvey to the trustee under the deed of trust 38 acres which the seller claimed had been improperly released. The opinion notes, “One of the covenants by Poway was that it would pay the taxes before due. It therefore was not in default in this respect when the $40,250 payment was made, but it was in default when it requested reconveyance and when the reconveyance was made. The trial court found that the property had been wrongfully released, ordered Poway to quitclaim the property back to the trustee, removed the cloud on the title and quieted the title in the trustee.” (232 Cal.App.2d at p. 24.) The release clause had an express provision reading, “ ‘So long as the trustor be not in default concerning any of the covenants contained herein or with respect to the payments due on the promissory note secured hereby, a partial reconveyance may be had and will be given from the lien or charge hereof of any portion of the property herein before described upon payment of an amount to apply on the principal of said note, based on a rate of $1,149.00 for each acre. ...’ ” (Id., p. 25.) The buyer had paid in $40,250, ostensibly for 50 acres, but admittedly $971.40 short. He had demanded and received conveyances aggregating 12.27 acres prior to defaulting in the payment of taxes, and had demanded and received 38 acres two months later. Admittedly the buyer had received more than he had paid for.

the whole of lot 179, for which amount no lots had been released. The court had the power and it was its duty to prevent so unjust and inequitable a result as that now contended for by the appellant, and the relief demanded by the appellant was properly given upon the condition that the equitable rights of the respondent be protected.” (6 Cal.App.2d at p. 648.) The foregoing conclusion also indicates that release rights which have accrued before default are not lost by a subsequent default.

This principle was established in this state earlier in Sacramento S. F. L. Co. v. Whaley, supra, 50 Cal.App. 125 . There the mortgagor on February 19, 1914, had given a note payable in five years for $6,748, due on an approximately 60-acre parcel with 7 lots varying in size from about 5 to 13 acres. The mortgage provided for the release of “any ten acre lot or more” upon the payment of $125 per acre. Subsequently, a second mortgage was given for $1,000. Interest and taxes were paid through February 19, 1917, but thereafter no payments were made, and in March 1918 the mortgagee gave notice of default and acceleration of the due date of the entire debt. On May 24, 1917, the second mortgagee tendered $4,375 and demanded the conveyance of five lots containing 34.86 acres. That sum was in excess of the $4,357.50 required at $125 per acre but was insufficient to include the amounts due for delinquent taxes and interest. In the mortgagee’s foreclosure action the second mortgagee alleged it had also tendered “such further sum as said [mortgagee] had expended in taxes or other expenses for the [five lots],” and sought their release. The trial court decreed that the five lots would be released if the second mortgagee paid in the release price, plus $134.93 accrued taxes paid by the mortgagee on the five lots with interest on that sum. The mortgagee appealed.

After holding that the agreement to release was a covenant running with the land which the second mortgagee could assert (50 Cal.App. at pp. 129-133) the court addressed the mortgagee’s objections to the certainty of the clause (see part IV below), and the rights to enforce the clause after default. On the latter issue the court concluded as follows: “No California cases are cited upon the point involving the question whether the right to an enforcement of the release clause still subsisted after default in the payment of interest and taxes and after the mortgage holder had declared the whole amount of principal, interest, and taxes due and payable because of such default. The following cases from other jurisdictions, however, hold that the right to a partial release, by the payment of a stipulated sum, is available after default in payment and

the agreement to release unless he shows that it was only the defendant seller’s acts which precluded him from paying all the obligations he undertook in full. (See Kenworthy v. State of California, supra, 236 Cal.App.2d 378 , 394-395; and 1 Witkin, Summary of Cal. Law (8th ed. 1973) § 619, p. 527.) In Conley v. Poway Land & Inv. Co., supra, 232 Cal.App.2d 22 , the court apparently rejected the buyer’s offer to pay an additional sum so as to warrant the retention of the full 38 acres, or 38.27 acres. There, however, the release provision was expressly conditioned on freedom from default, and the court expressly distinguished the earlier Sacramento S. F. L. Co. v. Whaley case. It gives no comfort to the seller.

In Salot v. Wershow, supra, 157 Cal.App. 352 , the second encumbrancer agreed to release lots if the buyer made payments on the first encumbrance and secured a release pursuant to the terms of the first deed of trust. Such payments increased the second lienholder’s equity in the remaining lots. The trial court had dissolved a preliminary injunction restraining foreclosure by the second lienholder on 18 lots for which the buyer had demanded releases shortly before the maturity of the second junior loan because it found that the buyer had committed an anticipatory breach by announcing that he could not pay that loan when due. The court on appeal rejected that theory as not sustained by the facts as law. It did, however, affirm the judgment denying the buyer relief because the record reflected that no release of those lots under the first encumbrance had been effected prior to the maturity of the obligation secured by the second lien. It concluded, “We think the proper construction to be placed upon the language used is to determine that the parties intended that at all times on and after the maturity date of the Wershow note and trust deed on May 1, 1955, plaintiffs would be obliged to tender performance on their part of all concurrent conditions, including the tender of payment of $63,750 principal plus interest then due and owing upon the maturity date of the Wershow note and trust deed. [Citations.]” (157 Cal.App.2d at p. 359.) The court did note, “In our opinion upon a showing at any time prior to [the maturity of the second obligation], that the lots had been released from the [first] trust deed according to its terms, the obligation to release lots under the [second trust] deed would have become unconditional.” (Id.) So here prior to the maturity of the obligation, even as accelerated, the buyer had both paid sums entitling him to a release, and demanded the release.

In Bradbury v. Thomas, supra, 135 Cal.App. 435 , the mortgage, which had been assumed by the plaintiffs, provided, “ ‘And also that mortgagor

while not in default shall be entitled to a separate release of each or any of said lots or parcels at a flat release price of One Hundred Dollars ($100.00) ....’” (135 Cal.App. at p. 441.) The purchase money notes secured by a mortgage on 86 lots were each in the sum of $3,833 and matured respectively on February 10, 1927, and February 10, 1928. The notes were not paid when due, but in 1929 the plaintiffs paid $1,533.20 on the principal of the notes pursuant to an extension agreement. The interest was paid to February 10, 1931. In December 1931 the plaintiffs demanded conveyance of 15 lots and on the mortgagee’s refusal brought suit to quiet title to those lots. The mortgagee cross-complained for foreclosure of all of the 86 lots involved and prevailed. The court, on review, concluded that the release claim was not applicable because the plaintiffs were in default at all times after February 10, 1929, and the partial payments did not relieve that default (135 Cal.App. at p. 443). The court distinguished Sacramento S. F. L. Co. v. Whaley, supra, 50 Cal.App. 125 , because in that case the release clause, as is true here, contained no limitation that any payment for a release of land from the mortgage lien had to be made when the mortgagors were not in default. Bradbury v. Thomas, supra, pages 443-444, does not sustain the seller’s position that the buyer’s payments on principal, after default in the payment of taxes and assessments, entitled the buyer to no credit for a release of acreage.

The seller also notes that a commentator has suggested that since the passage of antideficiency legislation the court’s attitude toward release clauses may change. Hetland, parenthetically notes, “Cases prior to the enactment of the antideficiency legislation tended to hold enforceable any kind of release provision (see e.g. Sacramento Sav. & Loan Co. [¿vc Sacramento Suburban Fruit Lands Company] v. Whaley (1920) 50 CA 125, 194 P 1054 ), but the seller needed less, protection since he could enforce his claim against the buyer personally.” (Hetland, Secured Real Estate Transactions (Cont.Ed.Bar 1974) § 10.16, p. 248.) The logic of that statement may be questioned, if the buyer secures the release of the choice lots and sells them without proceeding with the development of the rest of the property, there is no assurance that he would be solvent. Furthermore, whether or not the seller needs protection depends upon the relative bargaining position of the parties at the time the sale and financing provisions are effected. Should the seller who had driven a hard bargain with the buyer be protected? Since the enactment of antideficiency legislation in 1933 each party must be deemed to have contracted with notice of its provisions. We also note that since 1963, the antideficiency provisions of section 580b of the Code of Civil Procedure

do not apply to third party lenders of the purchase price of property not purchased for a dwelling for not more than four families. By dismissing her cross-complaint and proceeding under the power of sale, the seller avoided what equitable adjustment might otherwise have been made to protect the buyer in the event of foreclosure. (Cf. Code Civ. Proa, §§ 580a and 580d.)

It is, therefore, concluded that the buyer was not deprived of what rights otherwise may have accrued under the release clause because of the time and circumstances under which the payments of principal were made, and under which the release of property was demanded.

The court found that the buyer’s request for release was unconscionable, inequitable and totally unfair to the seller (see parts V and VI below). As a result it further found that it did not “need to reach a conclusion concerning the validity of the release clause per se with respect to its uncertainty, ambiguity or the validity of the release clause on its face,” or “the validity of the release agreement as it pertains to the Statute of Frauds. . . .” Since the seller urges the uncertainty of the agreement in support of the judgment, and since the buyer’s rights whether specifically enforceable or not, must rest on the validity of the release clause, we undertake to examine that question. It is obvious that any attempt to determine whether the buyer’s demand for a release was unconscionable, inequitable or unfair can only be determined in the light of the buyer’s rights and the seller’s obligations under that clause.

The trial court did find that the deed of trust contained “a release provision allowing the property owner to release acreage at the rate of I acre for every $3,000 paid upon the promissory note and gave the purchaser the right to select said acreage so long as the buyer selected property that was ‘contiguous’ to the 150 acres that the purchaser acquired free and clear at close of escrow, and provided, further, that the remaining land, which would be subject of the deed of trust would have the right of ingress and egress to a public highway meeting official requirements.” (Cf. fn. 7 above.) Civil Code section 3390 provides in pertinent part: “The following obligations cannot be specifically enforced: ... 5. An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable.”

Russell (1942) 50 Cal.App.2d 520 , 529 [ 123 P.2d 606 ]. Cf. Hines v. Copeland (1913) 23 Cal.App. 36 , 42-43 [ 136 P. 728 ].)

In support of the judgment the seller relies upon Lawrence v. Shutt (1969) 269 Cal.App.2d 749 [ 75 Cal.Rptr. 533 ], and cases cited therein which we have noted below. There the plaintiff buyers, as in this case, sought specific performance of a release clause, declaratory relief and a decree quieting title to the property for which a release was demanded. The sellers, again as in this case, claimed that the release clause was invalid, but unlike this case, they did not seek to retain the fruits of the transaction, but counterclaimed for rescission. They were awarded judgment cancelling the deeds and the deeds of trusts upon the property, upon restoring to the buyers the $250,000 paid under the agreement. The agreement and the deeds of trust fixed a release price per acre for three separate portions of the total 1,280 acres sold, with conditions involving the minimum size parcel to be released, contiguity, the relationship of the released parcels to certain boundaries, and the establishment of rights of way to unreleased parcels. It was further provided that the sellers would release property having a release value of $150,000 on close of escrow when the buyers paid $250,000 on the total price of $1,280,000. Prior to the close of escrow the buyers caused to be prepared and forwarded to the sellers a map and legal description of two parcels, totaling 143.5 acres, which they requested be excluded from the deed of trust in accordance with the release clause. The sellers refused to release the property but the escrow nevertheless closed, and the deeds and deeds of trust covering the whole property were recorded. The buyers immediately commenced their action and attached the proceeds of the escrow and other accounts of the sellers. They renewed their demand for a partial reconveyance. A month later the sellers gave notice of rescission setting up several grounds of which mistake, invalidity of the agreement and failure of consideration were urged at trial. It was only at a pretrial conference that they urged that the request for a release was denied because it failed to comply with the release provision in two respects, i.e., the inadequate size of one parcel requested, and because its effect would deprive the sellers of reasonable access to unreleased portions of the land.

With this background the court on appeal first addressed the question of whether “the trial court erred in determining that the provisions of the escrow instructions and the deed of trust calling for the release of portions of the property were so vague, indefinite and uncertain as to be unenforceable and hence rendered the entire sale transaction void and of

no force or effect.” (269 Cal.App.2d at p. 760.) The court first pointed out that it was not bound by the trial court’s construction of the release clause if such construction was erroneous. (Id.) Here, as we have pointed out, the court’s construction of the release clause was not the focal point of its decision, and it apparently paraphrased its contents to the satisfaction of each party in the findings. The court then laid down some general percepts that are applicable here, in the following terms: “It is well settled that courts will give written agreements, if reasonably possible, a construction which will result in their being enforceable contracts. (Civ. Code, § 1643; other citations omitted.) ‘ “That a greater degree or amount of certainty is required in the terms of an agreement which is to be specifically executed in equity than is necessary in a contract which is the basis of an action at law for damages” has often been declared.’ (Long Beach Drug Co. v. United Drug Co., supra [ 13 Cal.2d 158 ] at p. 164, . . .) [H] In order for a court of equity to decree that an obligation is specifically enforceable the terms of the contract must be complete and certain in all particulars essential to its enforcement. (Magna Dev. Co. v. Reed, 228 Cal.App.2d 230 , 235-236 [39 Cal.Rptr: 284] . ..; Civ. Code, § 3390, subd. 5.) The agreement must not only contain all the material terms but also express each in a reasonably definite manner. (Spellman v. Dixon, 256 Cal.App.2d 1 , 3 [ 63 Cal.Rptr. 668 ]; Magna Dev. Co. v. Reed, supra.) These principles have been repeatedly applied to deny specific performance of agreements which are incomplete, indefinite or uncertain with respect to the terms of payment of deferred balances or the terms of encumbrances representing such deferred balances. [Citations.] Recently these principles have been applied in denying specific performance to subordination agreements when the subordination provisions have been found uncertain and incapable of ascertainment by reference to an objective standard. (Handy v. Gordon, 65 Cal.2d 578 [ 55 Cal.Rptr. 769 , 422 P.2d 329 ]; Spellman v. Dixon, supra, 256 Cal.App.2d 1 ; Stockwell v. Lindeman, 229 Cal.App.2d 750 [ 40 Cal.Rptr. 555 ]; Magna Dev. Co. v. Reed, supra; . .. .)” (Id., pp. 761-762.)

Having set forth the foregoing principles, the court continued, “In the instant case the trial court was clearly, and with good reason, concerned about the ambiguity of the operation of the release clause. Plaintiffs had asserted in open court that the word ‘contiguous,’ as used in the release clause, gave them the unrestricted ‘right to select for release a piece of property that merely touches’ and hence they could take that portion of the property suitable for development and leave defendants with the hills and gullies. Plaintiffs argued below and argue here that the word ‘contiguous’ is fundamentally certain in meaning and that, therefore, the

agreement is not void for indefiniteness and uncertainty. Plaintiffs cite Ganiats Constr., Inc. v. Hesse, 180 Cal.App.2d 377 , 385 [ 4 Cal.Rptr. 706 ], wherein the court said that ‘ “contiguous” realty need have only a minimum common boundary with the adjacent property’ as authority for the proposition that the word ‘contiguous’ is fundamentally certain in meaning. However, in Ganiats the appellate court also said (pp. 384-385) in considering an option giving the optionee the right to purchase 10 acres of property and thereafter upon certain terms and conditions the ‘next contiguous thirty (30) acres;’ thereafter upon further terms and conditions the ‘next contiguous seventy (70) acres’ and the ‘next contiguous one hundred twenty (120) acres:’ ‘The reference to the acreage in the designation “the next contiguous thirty acres” is not in itself a self-sufficient description. An acre is “[a] quantity of land containing 160 square rods of land, in whatever shape.” (Black’s Law Diet. (4th ed. 1951), p. 42.) An acre can be a circular, square, triangular, irregular, broad or narrow strip of land. Indeed, an acre is not a concrete form; it is a term of quantity and it can be applied to land in all manner of patterns.

“ ‘As we shall point out infra in more detail, the crucial term “next contiguous thirty acres” does not in itself specify the area covered by the option. In the first place the contiguity of one acre “next” to the westerly boundary would literally suffice to fulfill the definition, leaving open and unspecified the location of the remaining acreage. Even if we place all the 30 acres as close to the westerly boundary as possible: that is, the maximum number of acres adjacent to the westerly line, the remaining acres of the area may still take various forms or shapes, and the location of the easterly boundary remains indefinite.’ In the case at bench the release clause was even more indefinite and uncertain; it provided only that any parcel of property no smaller than a certain number of acres released must be contiguous to that previously released.” (Id., pp. 762-763.)

It concluded, “While plaintiffs may be technically correct in asserting that the word ‘contiguous’ is certain in meaning, it is apparent that the word, as used in this release clause, renders the release clause uncertain and unreasonable in equity on the ground that the provision placed the sellers in a position where they could be deprived of all the choice land without adequate protection that they would ever be compensated by the buyer for the remainder. (See Handy v. Gordon, supra, 65 Cal.2d 578 , 581; cf. Magna Dev. Co. v. Reed, supra, 228 Cal.App.2d 230 , 243-244.)” (Id., at p. 763, italics added.) At this point we note that the two cases

denied, in fact reversed a judgment in which the buyer sought damages after the seller refused to perform a contract for the sale of land. The court stated with respect to the agreement, “The legal effect of this paragraph is to delegate to the buyers the task of dividing the property into the three parcels and to supply the escrow agent with the descriptions for insertion in the trust deeds. Imprudent as such a delegation to buyers may appear, it does not render the agreement of the parties void for uncertainty. It leaves nothing to subsequent agreement between the parties. Their understanding is definite and enforceable and simply stated means—the buyers are to divide the property into three parcels as they see fit and are to secure the balance of the purchase price by the three notes and trust deeds on the parcels in the amounts indicated and with the sole qualification that the largest loan of $14,600 be secured by the ‘most northerly portion of said land.’ It may be assumed the seller had confidence that the property would be divided by the buyers into three parcels in a fair and reasonable manner and one which would fit in with buyers’ plans for development of the property. The court should accord an interpretation which is reasonable (Civ. Code, § 1643) and which gives effect to the intent of the parties as it may be interpreted from their entire agreement rather than one which renders their contract void. (Civ. Code, §§ 1650, 1652, 1655, 1656.) Any fraud on the part of buyers in dividing the property would give rise to a cause of action by seller.” (229 Cal.App.2d at pp. 754-755.) In regard to the subordination agreement, the court opined: “Again, while it may seem imprudent or poor business for the seller to agree that the buyers may arrange with the lender, whoever it might be, for the remainder of the terms of the construction loans, so long as principal and interest do not exceed the máximums agreed upon, it is not the function of the court to remake the contract between the parties if the terms are clear and certain. Here, again, there is nothing left for future agreement between the seller and buyers. In effect, the seller states that whatever terms of repayment the lender may require which are satisfactory to the buyers are acceptable to the seller. It is noted that, in the most crucial areas of the maximum amounts of construction loans and of interest rates, the seller has fully protected herself and as to the other details we must assume from their agreement she is content to allow buyers to contract with lenders for new construction loans as they see fit and that whatever serves their interests will not adversely affect her own.” (Id., p. 755. See also Thompson v. Thompson (1919) 43 Cal.App. 588 , 590 [ 185 P. 427 ].) So here the buyer claims the seller made his bargain and must perform it despite the depreciation in the value of the property, which is discussed below.

The cases cited in Lawrence v. Shutt for the proposition that the agreement is not invalidated because it cannot be specifically performed demonstrate that the buyer has legal rights here. In Norris v. Lilly (1905) 147 Cal. 754 [ 82 P. 425 ], the trial court granted cancellation of deed which had been given in return for an oral promise to provide support and maintenance on the theory that since such an agreement could not be specifically enforced it was void. The court on appeal reversed the case for further proceedings, because part performance of the agreement may have supported the transfer. In so doing, the court pointed out, “The mere fact that a contract is not specifically enforceable does not render it either void or voidable. ... In the very case here pleaded, if the defendants, after the payment of this money, and after years of personal service, had refused to proceed further with the contract, plaintiff unquestionably would have been entitled to rescind, but in rescinding the court in equity would take cognizance of the value of the services rendered and the moneys paid, the value of the occupation of the land by the promisors, and reach its conclusion under the evidence as to the terms upon which a cancellation of the deed should be decreed.” (147 Cal. at pp. 756-757.) In Schomaker v. Osborne (1967) 250 Cal.App.2d 887 [ 58 Cal.Rptr. 827 ], the court reversed a judgment which had refused to grant specific performance following the buyer’s attempt to exercise an option to purchase. The court observed, “The necessity of future agreement on limited phases of the transaction does not prevent birth of a binding contract upon acceptance since, if the parties cannot agree on those phases, each may force the other to accept the determination of a court of equity. [Citations.]” (250 Cal.App.2d at p. 893.)

In Brooks v. Allard (1966) 244 Cal.App.2d 283 [ 53 Cal.Rptr. 82 ], the court reversed a judgment for specific performance because the description of a plat to be excepted and reserved from a general description of the property was uncertain (244 Cal.App.2d at pp. 284-288. See also Brudvig v. Renner (1959) 172 Cal.App.2d 522 , 524 [ 342 P.2d 276 ]), and because the evidence failed to sustain a finding that the seller had approved a survey of that plat. (244 Cal.App.2d at pp. 288-290.) It found reason to believe the buyer might accept a survey including an additional six and one-half acres which was satisfactory to seller, and gave him an opportunity to consent to a modification of the judgment accordingly (id., pp. 290-291). It ruled that if the buyer failed to accept the modification he should be remitted to his right to recover damages, since he had paid $30,000 to the seller on the contract (id, p. 292). In Leider v. Evans (1962) 209 Cal.App.2d 696 [ 26 Cal.Rptr. 123 ], the same court as decided Brooks v. Allard had reversed a judgment denying specific

performance of an option agreement. The court found the buyer was willing to accept any description of a reserved two acres proposed by the sellers. It indicated, under those circumstances, “If defendants refuse to accept plaintiff’s proposed description and refuse to propose one of their own, the court has the power to compel them to do so.” (209 Cal.App.2d at p. 699. See also City of Los Angeles v. Superior Court (1959) 51 Cal.2d 423 , 433 [ 333 P.2d 745 ]; and Ontario Downs, Inc. v. Lauppe, supra, 192 Cal.App.2d 697 , 704-705.)

Leider v. Evans, supra, also lays down the following test for certainty of description: “It has often been stated that one of the tests for determining the sufficiency of a description is whether a competent surveyor would have any difficulty in locating the land and establishing its boundaries from the description contained in the agreement to convey. [Citations.]” (209 Cal.App.2d at p. 703. See also Calvi v. Bittner (1961) 198 Cal.App.2d 312 , 316 [ 17 Cal.Rptr. 850 ].) There, as in this case, a surveyor had produced a sketch and a legal description of the two acre parcel involved, embracing the criteria and objects referred to in the option agreement. The court concluded: “It is evident that the surveyor above referred to had no such difficulty and, if defendants are unwilling to accept his survey, they should furnish one of their own.” (Id.)

Finally, we note the construction placed on the clause by the seller herself. (See Chapman College v. Wagener (1955) 45 Cal.2d 796 , 802-803 [ 291 P.2d 445 ]; and Long Beach Drug Co. v. United Drug Co., supra, 13 Cal.2d 158 , 166-167.) When confronted with the buyer’s demand for a partial reconveyance of 241 acres she did not claim, as she was later to claim in her answer filed September 17, 1974, that the release clause was unenforceable, or, as she claimed in an amended answer filed July 24, 1975, that the clause violated the statute of frauds. (Civ. Code, § 1624.) Her letter of March 18, 1974, indicated that a release of the 241 acres had been authorized on condition that the buyer pay up the delinquent taxes and assessments, reserve to the seller an access to the remaining land from Page Mill Road, and adjust the acreage to compensate for the improvements on the land selected, or select other land. (See fn. 9, above.)

So in this case we conclude that the release agreement was not invalid because of uncertainty. If the seller is entitled to be relieved from specific performance of the release agreement it must be because (1) the buyer’s demand was not in accordance with the terms of the agreement (cf. Hiller v. King (1951) 105 Cal.App.2d 181 , 194-195 [ 232 P.2d 905 ]); or

(2) because it would not be just or reasonable to specifically enforce the agreement (Civ. Code, § 3391, subd. 2; see part V infra)', and, in the latter event, the buyer should be entitled to restitution or damages (see part VI infra).

Since the trial court did not rule upon the propriety of the seller’s original specific objections to the buyer’s request for a partial release we do not deem it appropriate to evaluate that request in the light of the counteroffer. It would appear, however, that since no taxes and assessments had been paid by anyone since April 1970, that the reimbursement noted in Sacramento S. F. L. Co. v. Whaley, supra, 50 Cal.App. 125 , was not necessary. A strict application of the holding of that case would indicate that every time $3,000 was paid there was an equitable conversion of one acre which would not be defeated by a subsequent default. Nevertheless, there may be some merit to the contention that there could be no equitable conversion by payment of principal when delinquencies existed to the extent such funds were necessary to pay the delinquencies.

The question of whether the release agreement contemplated that the “easement, right of way meeting official requirements or dedicated street” which was to afford ingress and egress to the remaining land was to be carved out of the property released, or whether existing dedicated streets no matter how difficult of access, would suffice is one which only can be resolved on the basis of the whole record.

The original draft of the agreement dated March 5, 1968, provided for the release clause in paragraph 10. By amendments dated March 5, 1968, a minor amendment adding “meeting official requirements” was made to that paragraph. At the same time three new paragraphs were added to the original draft. These paragraphs respectfully recited that the seller allocated the sum of $97,500 for the seven-acre parcel which with improvements constituted her residence property, reserved to seller the occupancy of those premises until April 20, 1968, as a tenant, and provided for an advance of $125,000 from buyer to seller. It would appear as suggested by the buyer that the first of those paragraphs was inserted to establish a sales value of the improvements for tax purposes. (See White Point Co. v. Herrington, supra, 268 Cal.App.2d 458 , 467.) It seems that the amendments to paragraph 10 would have included specific reference to the seven-acre parcel if it were intended to create an exception to the general language contained therein, and that it would thereafter have been inserted in the deed of trust.

In any event, if the counteroffer be deemed correct, the discrepancies between it and the original request were not so serious in view of the overall amount involved, that they could not have been adjusted by the trial court, within principles reviewed above, in resolving the differences of the parties, had there been no other defects in the request.

V

Insofar as is pertinent here, section 3391 of the Civil Code provides: “Specific performance cannot be enforced against a party to a contract in any of the following cases: [If] 1. If he has not received an adequate consideration for the contract; [If] 2. If it is not, as to him, just and reasonable; . . .” No contention is made that the consideration fixed as the purchase price of the land, or the release price of $3,000 per acre was not adequate at the time the agreement was entered into in 1968. The difficulties arose because development on a scale which was foreseeable in 1968 was frustrated by subsequent rezoning, that in turn depreciated the value of the property.

The court, after viewing the property, made extensive findings on the issue of whether the enforcement of the release clause as requested by the plaintiff buyer would be just and reasonable. It found that the buyer hired an engineer to define by survey 241 acres for release, representing the number of acres at $3,000 per acre for the aggregate of $725,000 principal which the buyer had paid in the five years from March 15, 1968, through March 15, 1973. In selecting the acreage for release, the survey included real property consisting primarily and almost wholly of land remote from the 150 acres originally purchased by plaintiff which was free and clear of the deed of trust. The two parcels were connected by a narrow corridor of land having a varying width of 100 to 400 feet.

The property selected for release consisted of all of the remaining property bordering Page Mill Road, historically the access to said ranch. It further included ranch headquarters, storage buildings, bam, guest pavillion and substantially all of the physical improvements. The bulk of said 241 acres selected for release consisted of most of the developable lands for residential homesites, including both sides of Montebello Ridge which is the view property to the east overlooking Santa Clara Valley and west to the mountains. It is a crest in the Santa Cruz mountain range. The property selected for release is further in close proximity to the water utilities and has good access to Page Mill with an existing roadway located thereon and known as Montebello Ridge Road.

If the property were released, the defendant would have been left with 359 acres located in the southwesterly portion of the 750 acres. This property consists primarily of steep slopes and a canyon with very little developable area for residential homesites. While there is some frontage to the remaining 359 acres along Skyline, for all practical purposes, the defendants would be unable to develop access to the major portion of the remaining property. If access could be developed, it would only serve the extreme southwest portion of the property and only a small portion of the acreage. The cost to gain access to the balance of the property would be at most, difficult, expensive, and based upon the evidence present, which is uncontroverted, would be, for all intents and purposes, impractical. In addition, release of the 241 acres would cut off access to the existing water and sewer lines.

The plaintiff selected substantially the most intrinsically valuable property, leaving the defendant security on 359 acres that are largely inaccessable, largely undevelopable and, as a result, the fair market value of the remaining security would be substantially less than the balance of $725,000 plus interest due on the outstanding promissory note. If such a release were allowed, the plaintiff’s security for the promissory note would be nominal, and in light of the fact that the court finds that said deed of trust is a purchase-money deed of trust, the defendant’s ability to receive the purchase price that he bargained for would be seriously jeopardized. The value of the remaining 359 acres becomes even more acute by reason of the actions of the City of Palo Alto which has greatly diminished the market value of the property which, prior to down zoning, had been valuable for development into residential estates as evidenced by the sales price between plaintiff and defendant that was agreed upon in 1968.

From the foregoing facts the court made the following mixed findings of fact and conclusions of law: “[T]he property so selected is not within the sense and spirit of release clause by any reasonable interpretation”; . . . “[T]he court finds that the plaintiff’s requests for release is unconscionable, inequitable and totally unfair to the defendant.” It concluded: “That plaintiff attempted to exercise the release provision in an inequitable and unconscionable manner, which severely prejudiced the security of the defendant.” The judgment, as we have noted, denied plaintiff buyer any relief at all.

In Handy v. Gordon, supra, 65 Cal.2d 578 , the court affirmed a judgment on the pleadings for the defendant seller in an action in which

the contracting buyer sought specific performance because the contract was not just and reasonable. The court laid down the following rules: “Although the parties to a contract of sale containing a subordination clause may delegate to the vendee or third party lenders power to determine the details of subordinating loans, an enforceable subordination clause must contain terms that will define and minimize the risk that the subordinating liens will impair or destroy the seller’s security. [Citations.] Such terms may include limits on the use to which the proceeds may be put to insure that their use will improve the value of the land, maximum amounts so that the loans will not exceed the contemplated value of the improvements they finance, requirements that the loans do not exceed some specified percentage of the construction cost or value of the property as improved, specified amounts per square foot of construction, or other limits designed to protect the security. Without some such terms, however, the seller is forced to rely entirely on the buyer’s good faith and ability as a developer to insure that he will not lose both his land and the purchase price. Even if we were to assume that a contract of sale contemplating subdivision by the vendee is sufficiently different from the usual land sale contract to take it out of the operation of the anti-deficiency legislation [citations], the personal liability alone of the vendee would not constitute sufficient protection to the vendor to permit specific performance. [Citations.]” (65 Cal.2d at p. 581. See also Spellman v. Dixon, supra, 256 Cal.App.2d 1 , 3-4; and Magna Development Co. v. Reed, supra, 228 Cal.App.2d 230 , 235-242. Cf. Stockwell v. Lindeman, supra, 229 Cal.App.2d 750 , 755-758.)

In White Point Co. v. Herrington, supra, 268 Cal.App.2d 458 , the court purported to rely on uncertainty (Civ. Code, § 3390, subd. 5) in reversing a judgment for specific performance of an alleged agreement for the purchase and sale of property which contemplated a release clause for “partial releases at $3000.00 per acre.” (268 Cal.App.2d at pp. 465-468.) The language in the opinion, however, refers to the analogy between release clauses and subordination agreements, and sets forth how an unconditional release clause may impair the seller’s security {id., pp. 466-467). As we have seen (part IV above) in Lawrence v. Shutt, supra, 269 Cal.App.2d 749 , the principles developed in connection with the subordination agreement were applied to preclude specific performance of a release clause in an executed contract for purchase and sale (269 Cal.App.2d at pp. 760-763).

The buyer has not questioned the factual findings of the court as set forth above. The foregoing precedents clearly sustain the trial court’s

findings and conclusions that it would be improper to grant plaintiff specific performance of the release of the property requested in his demand of February 9, 1974.

We have been referred to no subordination case in which the contract was duly executed, consideration paid to the seller, and a demand made at a subsequent date. In the cases cited above the sellers sought to rescind the executory agreement, and the consideration, where received, was tendered or returned to the buyer. In White Point Co. v. Herrington, supra, 268 Cal.App.2d 458 , the contract was executory and apparently no payment had been made and accepted. In Lawrence v. Shutt, supra, 269 Cal.App.2d 749 , the contract was executed by payment of the down payment of $250,000. The trial court had ordered that payment restored to the buyers on finding the seller was entitled to rescind. The court on appeal avoided any such question because it found the buyer was willing to proceed without any release clause or any conditions other than an accounting for the loss of use of his money. That question was referred back to the trial court. (Id., pp. 766, 767.)

Here we are faced with a buyer who has paid in one-half of the balance due on the purchase price of 600 acres, and who by reason of an agreement entered into in 1968 believed he was entitled to a release and reconveyance from the trustee of 241 of those acres. The judgment of the trial court apparently forfeits all of the rights the buyer expected to enjoy under the release clause, and unduly enriches the seller by giving him 241 extra acres as security for the balance of the purchase price which became delinquent.

In closing argument counsel for the plaintiff stated, “Your Honor, if we didn’t draw that line just right, the plaintiff should have the line redrawn. But I submit there is no basis for it. There is no evidence in the record to support that. [|] But surely, if the Court finds that relief can only be afforded the plaintiff if he consents to some modification, the plaintiff will consent. That’s doing equity. That’s what we understand the law of equity to be.”

Following the court’s oral announcement of its decision, which is closely followed in the findings of fact and conclusions of law, the plaintiff caused to be prepared an amended demand for partial

reconveyance designating 240 acres immediately adjacent to the 150 acres conveyed free of lien at the time of the execution of the original contract, which new acreage included a substantial part of the acreage which had been criticized as leaving the defendant with inadequate security, and excluded most of the acreage which defendant’s testimony showed to be the most valuable acreage. The plaintiff further commenced proceedings to redeem the entire property from the tax sale, and to determine the amount of the special assessments as finally levied by the city. He moved the court to reopen the proceedings to consider the foregoing and to prevent a forfeiture by either approving the revised request for a partial reconveyance, or by decreeing that he was entitled to the return of the consideration paid for that acreage, with a hen upon the property superior to the deed of trust for the repayment of that sum. He also sought consideration of the respective rights of the parties to the claims made in the pending inverse condemnation action against the City of Palo Alto.

The court denied the motion to reopen. The findings of fact contain the following recitals:

“. . . In addition, the Court finds that at no time prior to trial did the plaintiff even offer rights of access to the defendants from Page Mill Road across the property selected for release.”

“Plaintiff, subsequent to the trial, filed a motion requesting the court to approve a release of 241 acres consisting of property of different acreage. The court finds that in view of the diminution in value of the property as a whole, the substantial nature of default by plaintiff which still exists in the form of non-payment of taxes, assessments and payments of principal and interest on the promissory note and the further long-standing request of plaintiff to insist upon a release of the original 241 acres that he desired to select, it would be prejudicial to the rights of the defendant to allow a release of any portion of the subject property at the present time. The court, in this capacity, is exercising its equitable powers and considers the actions of the plaintiff with regards to the. most recent request for a different release of acreage to be untimely and, as a result, the court finds that plaintiff is guilty of laches.”

“The court finds that the plaintiff has chosen to stand on the contract as opposed to seeking the relief of restitution for the purchase price and thus has elected his choice of remedy.”

A second concept is that the buyer should be left without recourse because he fails to come into court with clean hands. The seller relies upon principles expounded in Precision Co. v. Automotive Co. (1945) 324 U.S. 806 [ 89 L.Ed. 1381 , 65 S.Ct. 993 ], as follows: “The guiding doctrine in this cáse is the equitable maxim that ‘he who comes into equity must come with clean hands.’ This maxim is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant. That doctrine is rooted in the historical concept of court of equity as a vehicle for affirmatively enforcing the requirements of conscience and good faith. This presupposes a refusal on its part to be ‘the abettor of iniquity.’ Bein v. Heath, 6 How. 228 , 247. Thus while ‘equity does not demand that its suitors shall have led blameless lives,’ Loughran v. Loughran, 292 U.S. 216 , 229, as to other matters, it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue. [Citations.] [If] This maxim necessarily gives wide range to the equity court’s use of discretion in refusing to aid the unclean litigant. It is ‘not bound by formula or restrained by any limitation that tends to trammel the free and just exercise of discretion.’ Keystone Driller Co. v. General Excavator Co., supra [ 290 U.S. 240 ] 245, 246. Accordingly one’s misconduct need not necessarily have been of such a nature as to be punishable as a crime or as to justify legal proceedings of any character. Any willful act concerning the cause of action which rightfully can be said to transgress equitable standards of conduct is sufficient cause for the invocation of the maxim by the chancellor.” (324 U.S. at pp. 814-815 [89 L.Ed. at p. 1386]. See also 7 Witkin, Summary of Cal. Law (8th ed. 1974) Equity, §§ 8 and 9, pp. 5233-5235.) In the principal case the court noted “The history of the patents and contracts in issue is steeped in peijury and undisclosed knowledge of perjury.” (324 U.S. at p. 816 [89 L.Ed. at p. 1387].) The examples cited by the learned commentator in section 9 are similarly marked by extrinsic misconduct affecting the litigant’s claim. In this case, on the other hand, the buyer appropriately has sought vindication of his contract rights in judicial proceedings. We believe this case is governed by principles expounded in Schomaker v. Osborne, supra, 250 Cal.App.2d 887 . There the court ruled that the lessee-buyer seeking specific performance of an option to purchase had erred in contending he was not required to compensate the lessor-seller for certain improvements on the property. The court observed and ruled, “They were not guilty of bad faith, because they maintained their expectations of contract fulfillment according to the contract as they

conceived it. They were not required to surrender to all the seller’s demands at the peril of forfeiture. A party who acts in good faith may claim a contract construction more favorable to him than the contract will ultimately bear; judicial rejection of his claim does not preclude relief unless the other party is prejudiced by the change or reduction in the claim.” (250 Cal.App.2d at pp. 894-895.)

There are, however, statements in the cases we have reviewed which tend to support the trial court’s decision. In Conley v. Poway Land & Inv. Co., supra, 232 Cal.App.2d 22 , the buyer contended that the lower court had caused a forfeiture of property, allegedly erroneously released to it, by rescinding the transaction and that it should have allowed the buyer relief by permitting it to pay the total shortage of $971.40, which should have been paid before default to warrant the conveyance of the full 50.27 acres received. The court stated: “Appellants maintain that the judgment of the trial court results in a forfeiture which the law abhors. But in making this argument, we feel that appellants misapply the term ‘forfeiture.’ . . . [1Í] The judgment of the trial court did not amount to an all-time loss of the 38 acres to Poway. It merely returned this property to the status of unredeemed property under the deed of trust redeemable by said trustor upon the curing of its default.” (232 Cal.App.2d at p. 26.) Since in that case the court ordered release of so much of the land as was actually covered by payments before default, the language can only refer to the excess land for which payment had not been made while the trustor was “not in default” as required by the release clause.

In Lawrence v. Shutt, supra, 269 Cal.App.2d 749 , the buyers sought specific performance of the release clause, a declaration of the rights and obligations of the parties under the release clause, and to quiet title to the property for which the release was demanded. After the buyer indicated a willingness to retain title without the release clause if it proved unenforceable, the court stated, “In order to obviate any concern that plaintiffs might, at retrial, ask leave to amend to rescind this transaction, we hold that they are estopped to change their remedy to rescission by their original election to seek specific performance of this release clause. Plaintiffs have clearly manifested an intention to pursue one of two inconsistent remedies, and such a change obviously would operate to defendants’ prejudice in view of the lapse of time. (Ferguson v. Fajardo, 211 Cal.App.2d 119 , 121 [ 27 Cal.Rptr. 72 ]; citing 1 Witkin, Cal. Procedure (1954) § 51, p. 548.)” ( 269 Cal.App.2d 749 , 766-767.)

The foregoing solutions are not to be considered as exclusive, as it is properly the function of the trial court to provide an equitable resolution of the rights and obligations of the parties as we have expounded them herein. Nevertheless, in the interests of ending litigation, we give the seller the right to accept the first alternative within 30 days after the remittitur is filed with the trial court.

Since in our view of the record each party has been equally adamant in failing to recognize the equitable and legal rights of the other, no costs or attorneys’ fees will be allowed either party on appeal.

The judgment is reversed and the case is remanded for further proceedings consistent with the views set forth in this opinion.

Racanelli, P. J, and Elkington, J, concurred.

A petition for a rehearing was denied February 1, 1978, and the following opinion was then rendered:

THE COURT.—By her petition for rehearing respondent attacks the decision of the court in upholding the validity of the executed contract while acknowledging that she was entitled to some equitable relief; that is, rescission with return of the payments received, or substitution of some other interest in the land, if the purchase and sale was to persist. We adhere to our view that she was not, and is not, entitled to retain all the payments and all of the land.

She also seeks to secure a formulization of the equitable resolution of this case which the trial court has been directed to effect. The items to be considered will vary with the election that she makes. If a rescission is effected retroactive to February 9, 1974, the balance struck would bear interest at the legal rate. If she elects to share the net proceeds of the sale of the property, she is entitled to credit for the outlays made for taxes and expenses incurred in carrying the property since February 9, 1974, and in effecting the 1977 sale, with interest on those sums from the time expended. The source of those funds is of no consequence, and the plaintiffs and appellants are not chargeable with the interest she may have paid to secure the funds for those outlays. It would give respondent double recovery to credit interest on the expenditures, and also interest on the funds borrowed to make them. No other opinion is expressed as to the formulae proposed by the respondent. All the facts on which they are predicated are not in the record. The equitable solution should be determined in the first place, and hopefully decisively, by the trial court, on facts and principles to be presented there.

The petition of respondent Alyce Burns for a hearing by the Supreme Court was denied April 13, 1978.

Even though appellant’s death sentence has not been executed, we think the argument irresistible that the prohibition against double jeopardy forecloses a further sentence in an attempt to reimpose the more serious punishment on him. (United States v. Wilson (1975) 420 U.S. 332 , 343 [ 43 L.Ed.2d 232 , 241, 95 S.Ct. 1013 ].) Were appellant remanded for resentence under the new law he would be entitled to plead a former judgment of conviction and sentence (Pen. Code, §§ 1016, 1023) and to assert that his cause, in the words of Dobbert, “had progressed sufficiently far in the legal process so as to be governed solely by the old statute, with the concomitant unconstitutionality of its death penalty provision...” (432 U.S. at p. 301 [53 L.Ed.2d. at p. 361]).