Deist v. Beck

BURNELL, J.,

pro tem.

These two cases were ordered consolidated on appeal. Respondent has failed to aid the court by filing any brief and, on motion of appellant, the time for filing of such brief having long since expired, the appeals were ordered submitted on appellant’s briefs.

Each case is an action seeking recovery of payments alleged to be due on the same contract for the purchase of real property, the first seeking recovery of payments claimed to be due up to February 12, 1924, and the second seeking recovery for payments alleged to be in default for the period between March 12, 1924, and May 12, 1925. An examination of the clerk’s transcript discloses that the respective complaints allege that about November 12, 1921, F. H. and Ida L. Miller, husband and wife, owned the lot which was the subject of the contract, and agreed to sell the same to Beck for $3,750. The agreement which was in writing is set out

in Time verla

and is in the usual form. It acknowledges receipt of a down payment of $200 and provides for payment of the balance at the rate of $40 per month, with interest at seven per cent per annum. It is further alleged that certain specified payments have been made by defendant, but that none have been made since February 12, 1923. It is also alleged that about June 5, 1922, the Millers assigned the contract and the property described therein to the plaintiff.

The findings in each case were in .accordance with the allegations in the respective complaints and were followed by the judgments in favor of plaintiff, from which these appeals are taken.

A number of points are attempted to be made by appellant which may be summarized as follows:

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(1) The contract was breached by respondent’s predecessors in interest, the Millers, by conveying the property to one Springer “without subjecting the property to appellant’s rights and without giving notice to Springer of said contract of sale.”

(2) The transfer by the Millers to respondent was ineffective as to appellant, since they were not in a position to convey title to respondent as security to protect appellant in continuing payments on the contract.