Martin v. Butter

PETERS, P. J.

This action involves a dispute over the title to a parcel of real property in Alameda County. Prior to 1926, the property was admittedly owned by Charles F. Lee and his wife. On July 20, 1926, the Lees entered into a written contract to sell the property to L. R. Butter and his wife, the appellants, for a total sum of $5,500 payable at the rate of $50 a month, plus interest. The appellants agreed to pay the taxes and insurance. The contract also provided that if the purchasers defaulted in any of their obligations, and such default continued for 30 days, the Lees should be relieved of all liabilities under the contract, and that all sums paid under the contract should be retained by them as rent. The contract contained the customary “time is of the essence” clause. The appellants took possession of the property upon the execution of the contract and have remained in possession ever since. Mr. Lee died in 1939, and Mrs Lee in 1941.

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Their interest in the property became vested in respondent Bernice Lee, now Bernice Collisehonn. On October 2, 1946, Bernice sold the property to respondents Joseph and Theresa Martin and delivered the deed to them. In November, 1946, Mr. and Mrs. Butter, upon the request of the Martins, were served with an eviction notice by the O. P. A. informing them that they had to vacate by April, 1947. For a period of five months after receipt of this notice the appellants paid the Martins a monthly rental of $30, but thereafter refused to pay rent, claiming an interest in the property under their 1926 contract. The Martins then brought this action to quiet their title, joining the Butters and Bernice Collisehonn. The trial court found that the Butter-Lee agreement was terminated long prior to the sale of the property to the Martins; that after such termination the Butters were merely tenants and had no other interest in the property; and that the Martins were the owners of the property and their title should be quieted. The Butters appeal.

The main contentions of appellants are that their contract was never terminated; that the Lees voluntarily agreed to a reduction in the monthly payments from $50 to $30; that these $30 payments were not rent, but payments on the principal, and interest; that in any event, if there was an abandonment of the 1926 contract, such abandonment was oral and ineffective under the statute of frauds; that neither Mrs. Butter nor Mrs. Lee gave written authority to their respective husbands to modify or terminate the 1926 agreement, and that such written authority was necessary.