Hunt v. Inner Harbor Land Co.

FINLAYSON, P. J.

This is an action to recover moneys which plaintiff had paid to defendant as part of the agreed purchase price under a written contract of sale whereby defendant had agreed to convey and plaintiff had agreed to purchase a certain parcel of land in Los Angeles County. Subsequent to the contract and to the payment of the moneys sought to he recovered, a condemnation action was commenced by the Los Angeles Flood Control District to condemn the land for flood control purposes. In its contract to convey defendant covenanted to deliver to plaintiff, upon payment of the agreed purchase price, “a good and sufficient deed of grant, bargain and sale to said property, and also a certificate of .title showing title to the same vested in the grantor or grantors in said deed.” This covenant calls for a good title to the land, unencumbered and free from defect.

(Haynes

v.

White, 55

Cal. 38;

Easton

v.

Montgomery,

90 Cal. 307, 314 [25 Am. St. Rep. 123, 27 Pac. 280].) The pendency of the condemnation action is an encumbrance upon the title.

(Block

v.

Citizens Trust etc. Bank,

57 Cal. App. 518 [207 Pac.

510].)

Subsequent to the commencement of the condemnation suit and prior

[273]

to bringing this action, plaintiff rescinded his contract to purchase upon the ground that defendant, by reason of the condemnation suit, could not give the title which it had obligated itself to convey. He likewise demanded repayment of the moneys already paid by him on the purchase price. Defendant refused to repay; hence this action. Plaintiff recovered judgment in the court below, and defendant appeals.