Towne v. City of Los Angeles

SHINN, J.,

pro tem.

On September 19, 1928, defendant J. Kamischer and Mary Kamischer, being the owners in fee of certain real property, conveyed the same by quitclaim deed to the plaintiff Harry Towne. There was pending at that time an action brought by the City of Los Angeles to condemn portions of the property. The deed to plaintiff recited that it was made “subject to encumbrances, liens, taxes, assessments, condemnation proceedings, and rights of way of record”. Since receiving his deed plaintiff has continued to be and is now the owner of the property. On November 21, 1928, he executed a deed of trust of the property to secure an indebtedness to Union Bank & Trust Company of Los Angeles, intervener herein. On January 6, 1930, an interlocutory judgment was entered in the condemnation proceeding and the judgment becoming final and the parties hereto having asserted their conflicting claims thereto, the award was paid into court to abide the result of the present action. On August 4, 1930, Kamischer and wife purported to assign to defendants Jose Cherques and William Levitt the award made in the condemnation proceeding in the amount of $8,633. The latter claim the award under this assignment; plaintiff claims it under the deed of the property to him; and Union Bank & Trust Company asserts a right to the

[420]

fund under the deed of trust from Towne. Judgment went in,favor of defendants Cherques and Levitt in the lower court, from which plaintiff and intervener appeal. The sole qúestion is whether the right to receive the award was reserved to the grantors at the time of the conveyance of the property to Towne, or passed to the grantee.

It is admitted that the deed to plaintiff was duly executed, delivered and recorded on September 19, 1928. The recital that the conveyance was made “subject to condemnation proceedings” did not amount to a reservation of any rights to 'the grantors. It merely expressed the understanding of the parties as to the condition of the title conveyed.

(Russakov

v.

McCarthy Co.,

206 Cal. 682 [275 Pac. 808], and eases cited.) The entire title and right to possession of the grantors therefore passed to the grantee.