Benedict v. Calkins

PULLEN, P. J.

Plaintiff appeals from both an interlocutory and a final decree rendered against him. In form the action was one to quiet title to an undivided one-third interest in certain real property in the county of Kern, and to obtain the cancellation of an agreement for the sale of said interest to the defendants. The real property in question consisted of the northwest quarter of section 33, township 11 north, range 12 west, San Bernardino base and Meridian, upon which certain mine prospecting had been carried on, and was situated a short distance from established mining properties.

At one time title to this property stood in the name of respondent Calkins, but he had conveyed to W. W. Kaye, who held the legal title in trust for his grantor. Kaye, with the consent of Calkins, conveyed an undivided one-third interest to Benedict, plaintiff and appellant herein, at which time it was understood as .testified by Calkins and found by the court to be true Benedict agreed that Calkins should have the right and power to sell or lease the entire tract it being agreed that Benedict however was to receive his share of any proceeds therefrom. Apparently Calkins and Benedict could not agree as to the handling of the property and Benedict conveyed his title to Atkin.

On April 7, 1931, Atkin contracted to sell to respondents by a written agreement. This agreement recited that in consideration of $400, $50 of which at the time of execution, was paid by Calkins to him, he, Atkin, sold to Calkins and Siemon all right, title and interest in and to the property in question, the balance on the purchase price to be paid on or before July 15, 1931. Atkin upon his part agreed to execute a proper deed of conveyance of the undivided one-third interest within ten days of the date of the agreement and deposit the same in the First National Bank of Glendale with instructions to deliver the same to Calkins and Siemon upon payment of the balance with interest. If -the balance was not paid on that date the bank was to return the deed to Atkin. The balance was not paid on or before July 15, 1931, nor was the same paid until after the interlocutory judgment in this action in 1935.

[418]

Appellant, to whom Atkin reconveyed his interest, is seeking to forfeit the rights of respondents under the contract by reason of their failure to comply with the terms thereof. It may be that time was made of the essence of the agreement by the language of the contract, or the subject of the contract being mining property, it may be time became of the essence independent of any express stipulation