Moreno v. Blinn

BARNARD, P. J.

This is an action for specific performance. On October 15,1938, Blinn leased 30 acres of farm land to the plaintiff for a term of six years, expiring October 15, 1944. The lease contained a clause giving Blinn “permission to sell said property, but giving tenant first right to purchase.” The tenant was also given the right to remove, at the expiration of the lease, any improvements placed thereon by him. The lease was recorded, and the plaintiff went into possession. In developing a dairy, he placed improvements worth $3,500 on the property.

In February, 1943, Blinn sold seven of the 30 acres to «. third party. Before making this sale Blinn took the matter up with Moreno and obtained from him a modification of the lease and also a quitclaim as to any rights in the seven acres. In April, 1943, Moreno called on Blinn’s attorney and inquired what price Blinn would accept for the remainder of the property. On May 1, 1943, this attorney wrote Moreno that Blinn would accept $7,500. Nothing further was done with this but in the latter part of October or early part of November, 1943, the Blinns sold and conveyed the property to the defendants Garcia for $4,500. The conveyance was a straight deed which was not made subject to the plaintiff’s lease. It was conceded

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that the Garcias had actual as well as constructive notice of the terms of the'plaintiff’s lease. Shortly after this conveyance was made and some time in November, 1943, the plaintiff inquired of Blinn’s attorney as to whether the place had been sold. The attorney replied that he did not know but would find out. Early in January, 1944, the plaintiff first learned, as a fact, that the place had been sold to the Garcias. On February 8, 1944, the plaintiff served written notice and tender on Blinn and Garcia, offering to pay $4,500 as the price which they had fixed on the property and notifying them that, in any event, he desired to exercise his option and purchase the property. After the sale the plaintiff paid the rent, as it came due, to Garcia.

The date on which this action was brought does not appear but the third amended complaint was filed on January 22,1945. Blinn and his wife were joined as defendants, but both having died before the trial the action was dismissed as to them. The court found in all respects in favor of the plaintiff and judgment was entered in his favor providing that he should deposit $4,500 in court, that the defendants Garcia should convey the property to the plaintiff, receiving the $4,500, and reserving jurisdiction to enter such further judgment as might be necessary in order to obtain a full conveyance of the property to the plaintiff. From this judgment the defendants Garcia have appealed.