Zimmerman v. Young

GRIFFIN, J.

This is an action to quiet title to a triangular strip of property consisting of % of an acre over which defendant claims a 20-foot easement for road purposes. Plaintiffs and cross-defendants appealed from a judgment upon the cross-complaint in favor of defendant and cross-complainant. One Houston, prior to 1935, owned a tract of land near Vista. It was surveyed, subdivided and sold and was mapped by a licensed surveyor. The map, No. 486, was recorded in the Recorder’s office on January 11, 1935, and recites: “I hereby certify that this map is a true and correct representation of an actual survey made by myself at the request of Dr. C. R. Geith, Wm. M. Houston and Wayne A. and Marion A. Zimmerman, the legal owners of this property, that it truly represents conditions found upon the ground, and that I have found or set all points as hereon shown.” This map clearly shows the 20-foot road easement here in dispute. Defendant Young and Houston executed a written contract of sale, as of January 3, 1935, for the purchase; by Young, of a 13.28 acre parcel of this subdivided tract of land. The written contract provided for a deferred payment plan for the purchase price of $1,542.80, payable $750 on or before September 1,

[625]

1935, and $792.80 on or before September 1, 1936, with interest at 7 per cent, payable quarterly. It further provided that “Time is declared to be the essence of this contract and should the buyer fail or neglect to make said deferred payments, or any of them, or to pay any of said indebtedness at the times and in the manner herein provided, then, and in that event, this receipt and contract shall be and become at once null and void. . . . Seller shall be at once released from any and all obligations at law or in equity to make any conveyance hereunder or to convey the property described to said buyer . . . buyer herein does hereby expressly waive any right to demand or receive from the seller, notice to pay . . . or notice of declaration of forfeiture . . . seller, on receiving such payments, . . . agree to furnish to the buyer a policy of title insurance ... as of such date, showing title to said premises to be vested in William B. Houston, . . . and the seller further agrees at such time to execute and deliver to the buyer ... a good and sufficient deed.”

The contract was never acknowledged or recorded but it was found by the trial court that it was at all times in force and effect and payments were being made upon it. The contract, as pleaded, shows that on September 9, 1935, there was paid $18 on account of interest; on November 29, 1935, $300 on principal; on December 3, 1935, $27 on interest in addition to $98 on the principal; and on December 4,1935, $202 on the principal. Although there were several payments on interest every few months thereafter, there was no further payment on principal until August 31, 1943. On September 1, 1944, $1,301.24 had been paid on the principal in addition to the payments of interest. This action was filed on September 14, 1944.