Flanery v. Mudd

BARTLETT, J. pro tem.

Benjamin Flanery, plaintiff and appellant, filed a complaint, to quiet title to certain real estate in Willowbrook in Los Angeles County, against the respondents, Charles W. Mudd and Ruth Truth Mudd, husband and wife, alleging that respondents were in possession of the property and, in addition to praying that his title be quieted, asked for the ouster of the respondents. The respondents denied his title and filed a cross-complaint against the appellant Benjamin Flanery and the other defendants, his wife Goldie Flanery and Wilbur M. Lamb and Hazel M. Lamb, husband and wife, to specifically enforce a contract for the sale of the real estate in question executed by appellant Wilbur M. Lamb to respondents on March 10, 1942. The court rendered judgment in favor of respondents on this cross-complaint.

[252]

At the trial Benjamin. Flanery based his claim of title on a quit-claim deed executed by appellant Wilbur M. Lamb to him on February 26, 1946. Prior to that the following had happened:

On March 10, 1942, the appellant Lamb had entered into a written contract for the sale of land to respondents for the sum of $1,500, payable $50 down and the balance at $20 or more per month, including interest at 6 per cent per annum, on the 10th of each month. The respondents were occupying the premises at this time. Thereafter payments were made by Mrs. Mudd to Mrs. Lamb in person by delivering them to Mrs. Lamb at her home until October 11, 1945. Nine of these payments were made after the date specified in the contract, although the contract provided that time was of the essence. These payments so made were accepted without any objection on the part of either Mr. or Mrs. Lamb. Shortly prior to September, 1944, Mr. Mudd had gone into the armed services and Mrs. Mudd went to Tulare to be with her husband’s relatives. She missed the September payment. She came back to Los Angeles in October of that year. Mr. Lamb came to see her and told her that she had done a fine job in making her house payments out of the $100 a month allotment check she received and if she wanted anything or the children needed anything she could go ahead and miss her house payments, if she wanted to. She told him she did not want to as she did not desire to have such a burden on her husband when he returned. The October payment was made. Later in the month she saw both of the Lambs and told them she had lost her copy of the contract. Mr. Lamb told his wife to get the contract from the bank within the next couple of days and present it to Mrs. Mudd. Mrs. Lamb told her she didn’t need to make the September payment until after Mrs. Mndd’s husband returned from the war. Mrs. Lamb never got the contract or brought it to Mrs. Mudd. On November 8, 1945, Mrs. Mudd and her sister-in-law went to the Lamb residence to make a payment. Unknown to Mrs. Mudd, Mrs. Lamb had left the residence in October and Mr. Lamb was in the armed services, so she found the house vacant, the blinds drawn and an accumulation of mail in the mail box. She and her sister-in-law went back that night and again on November 9th, and November 10th, and found the conditions the same. They made inquiries in the neighborhood but found no trace of the Lambs. Mrs. Mudd also inquired as to their whereabouts at all of the