King v. Stubbs Co., Ltd.

California Court of Appeal Feb 21, 1934 No. Docket No. 4942.Published

Before: Thompson

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Holding. A contract for the sale of land that references an unrecorded map in violation of state statute is void, entitling the purchaser to recover payments made under the contract in an action in assumpsit.

Issues

Whether a contract for the sale of lots referencing an unrecorded map is void under California law.
Whether a purchaser may recover payments made under a void contract in an action in assumpsit.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is settled law in California that a contract to sell lots belonging to a subdivision by reference to an unrecorded map, contrary to the provisions of the. statute, is void.”

“It follows that since the contract for sale of lots was void under the provisions of the statute above referred to, the money paid on the purchase price thereof was without consideration”

[59]

THOMPSON, J.

The plaintiff recovered judgment in this suit in

assumpsit

for the return of $500 paid to the defendant under the terms of a written contract as part of the purchase price for three lots. The contract referred to the subdivision of the tract in which the lots are situated by reference to an unrecorded map. From this judgment the defendant Stubbs Company, Ltd., has appealed.

In consideration of the payment of $500, the defendant Stubbs Company, Ltd., successor to the Stubbs Songey Co., by its agent Martha Sallceld, executed a written contract with the plaintiff July 6, 1931, agreeing to sell plaintiff lots Nos. 27, 28 and 29 in subdivision 7 of Clear Lake Oaks, in Lake County, California, “as shown upon official map thereof”. The balance of the purchase price was to be paid in monthly installments of $30, with a provision for seven per cent interest on all deferred payments. Notice of rescission of the contract was served upon the defendant during the week following the execution thereof. This suit in

assumpsit

was brought January 2, 1932, on the ground that the contract is void under the provisions of section 3 of the act of the legislature with relation to the recording of maps of subdivisions of land, which act was adopted June 17, 1929. (Stats. 1929, p. 1790; Act 4578, vol. 2, Deering’s Gen. Laws.) The cause was tried by the court sitting without a jury. The court adopted findings favorable to the plaintiff upon every material issue in the case, including the fact that the contract for sale of the lots which was executed by the defendant, described the lots by reference to an unrecorded map. Judgment was rendered accordingly to the effect that the contract is void and for a return to plaintiff of the purchase price paid thereunder. From that judgment the defendant Stubbs Company, Ltd., has appealed.

It is settled law in California that a contract to sell lots belonging to a subdivision by reference to an unrecorded map, contrary to the provisions of the. statute, is void. (Stats. 1929, p. 1790; Act 4578, vol. 2, Deering’s Gen. Laws;

Smith

King v. Stubbs Co., Ltd.

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THOMPSON, J.

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