Levine v. Chandler

MONROE, J. pro tem.

*

This appeal is from a judgment rendered August 23, 1961, for specific performance of a contract by which defendant and appellant Connie C. Chandler agreed to sell certain real property located in Orange County. By the terms of that decree it was ordered that appellant execute a proper conveyance of the property; that respondents pay into escrow funds as required by the contract of sale and execute and deliver for the use of appellant a promissory note for $130,000 secured by trust deed upon the property. Appellant having failed to execute a deed as required, a conveyance was executed by the clerk of the court in accordance with the provisions of the judgment. The money was paid into escrow and the promissory note and trust deed executed and delivered into escrow for appellant.

Thereafter the balance of the money, after complying with escrow provisions, was paid to appellant. The promissory note and trust deed were delivered to her.

A motion to dismiss the appeal was presented to this court on April 10, 1962. It was made on the ground that the appellant, having accepted the money payable to her, thereby received the fruits of the judgment and was estopped to prosecute the appeal further. There was and is the contention of appellant that she did no more with this check than to- deposit it in a bank in trust to be held pending the outcome of the trial. Respondent contended that this was nevertheless a voluntary acceptance of the benefits of the judgment. This court, feeling that there was some doubt about the matter, ordered that the motion to dismiss the appeal be heard together with the merits of the appeal and continued further hearing of the motion.

Supplemental motion has been filed and presented to the court upon the ground that the appellant has subsequently received and exercised dominion over the promissory note

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and the deed of trust. It was shown to the court that subsequent to the hearing of the first motion to dismiss the appellant did, by written demand dated October 2, 1962, instruct Security Title and Insurance Company of Santa Ana, trustee of the deed of trust, to proceed with foreclosure thereof. At the hearing it was admitted that this written demand was made. The general rule is set forth in 3 California Jurisprudence 2d at page 596 as follows: