Miller v. Lobdell

MUSSELL, J.

Respondents moved the dismissal of the appeal herein on the ground that appellants have voluntarily accepted substantial benefits of the judgment and therefore are estopped and barred from the right to appeal.

Statement of Facts

On July 2, 1947, respondents purchased from appellant William B. Miller, a hotel, bathhouse, cabins and real property

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situated in Orange County. On July 21, 1949, Miller filed an action against the Lobdells to foreclose a chattel mortgage given by them as security for payment of a promissory note in the sum of $29,000. The Lobdells, on August 24, 1949, filed an action in the same court against William B. Miller, his agent,- Frank O’Farrel, and Orange County Title Company to rescind the contract of sale and exchange. This action was based upon alleged fraud, misrepresentation and concealment practiced by appellants prior to the exchange agreement. The two actions were consolidated for trial and on February 5, 1951, judgment was rendered that Miller take nothing against the plaintiffs by reason of his complaint in the foreclosure action; the agreement of sale was adjudged to be null and void, rescinded and canceled; the promissory note for $29,000, the trust deed and the chattel mortgage were canceled and the title company was ordered to reconvey the Orange County property. It was further decreed that the Lobdells recover judgment against Miller for $37,772.90 and that Miller, upon the payment of this sum, is entitled to have the personal property described in the chattel mortgage conveyed to him; that upon payment of said judgment and within 30 days thereafter the Lobdells shall convey to Miller the personal property described in the mortgage and the Orange County real property, he to become the owner thereof.

The judgment was not paid and on February 9, 1951, the Lobdells tendered and delivered to Miller a deed to the Orange County real property and also a bill of sale of the personal property and demanded payment of the judgment. This tender and demand was made by letter to Miller, written by the attorneys and agents of the Lobdells, which letter stated, among other things, that the properties were being transferred and returned to Miller pursuant to the terms of the judgment. Miller was advised that the sole responsibility and liability for the safekeeping, maintenance and care of the properties would henceforth be his; that Mr. and Mrs. Lobdell no longer had any interest in or responsibility for such property; that their personal effects and belongings had been removed, employees and agents had been discharged; that all keys to the premises were turned over to Miller’s agent and attorney and that from February 19, 1951, damage or less to said property would be entirely Miller’s responsibility and concern. On the same date the attorney for Miller wrote to attorneys for the Lobdells and in his letter