Johnson v. Bridge

TYLER, P. J.

This is an action to specifically enforce a contract for the sale of certain real property. Judgment went for plaintiffs, and it directed that defendants execute a deed conveying the property in question upon -payment to them of the sum of $79.25, an amount admitted to be due. This is an appeal from such judgment.

It appears from the record that on April 20, 1912, Carrie E. Bridge, as vendor, and Bertha Johnson, as vendee, entered into a written contract for the purchase and sale of a certain house and lot situated in San Francisco. A small deposit was made by the vendee, and the balance of the purchase price was to be paid in monthly installments,

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the vendor to retain title to the premises until full payment was had.

Plaintiff with regularity made her payments pursuant to the terms of the contract. Following the execution thereof, and in the year 1916, the building was partially destroyed by fire, and the vendor collected the insurance, amounting to the sum of $700. At that time both parties to said contract learned for the first titue that the house as it had been originally erected overlapped the lot of the contiguous owner. Notwithstanding this fact the building was reconstructed by the vendor as it originally stood, the sum collected as insurance thereon being used for such purpose. Upon the completion of the building plaintiff Bertha Johnson entered into the actual possession of the property and has ever since been and now is in such actual possession. After the defendant vendor had reconstructed the building the adjoining lot owner instituted a suit against her, and judgment was rendered requiring the removal of the structure. In conformity with the terms of the judgment the building was removed to the proper lines, and it is here sought by the vendor to recover from said plaintiff the various items of expense incident thereto before being required to execute the deed in conformity with her original agreement. There is evidence to show that the vendee, after she discovered the overlapping and before the reconstruction of the house, suggested to her vendor that the structure be moved the necessary distance to take it off the adjoining lot. Plaintiff Bertha Johnson also testified that defendant vendor refused to do so, and told said plaintiff not to bother about the matter as the adjoining owner could do nothing in the premises and that the question was one which did not concern her. The defendant, on the other hand, denied that any such request for removal had ever been made. Under these circumstances it is the claim of appellants that the evidence does not show a ease for specific performance as granted inasmuch as it is inequitable to make such a decree against them without basing. it upon the condition that the money expended in removing the house and the costs incurred in the ejectment suit and certain other incidental expenses be returned to them. It is further claimed that said plaintiff, from the time she entered into possession of the property, has been the equitable owner thereof, and all expenses in