The McCarthy Company v. Moir

SHAW, J.

Action to quiet title. On January 9, 1904, •one Harvey Rice, as owner, made a contract to sell to defendant Frank Moir certain real estate situate in Los Angeles county, California, the description of which and consideration therefor, as inserted in the contract, being as follows: “Lots No. 19 and 20 of the proposed map of the Rice Tract. Located on the S. W. corner of South Main and Rice Av’s, being 328.61 feet west of Main St. Located on the S. West corner of Rice and Burnett Av’s, being 100 ft. front on Burnett Ave. running back 128.61 ft. west. Said tract of land above described having been sold to said Frank Moir this day for the sum of forty-five hundred dollars, - of the United States of America, the balance to be paid as follows: Two hundred ($200) dollars every 6 months on or before, with interest at 9 per cent per annum, payable at office of Grider & Hamilton, city of Los Angeles.” Moir assigned the contract to his wife, Lizzie Moir.

Rice did not subdivide the property, but thereafter conveyed the entire tract, including the parcels of land sold to Moir, to -the plaintiff, subject, however, to the rights and in

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terest of Moir under said contract. Upon acquiring the property plaintiff proceeded to subdivide and plat the same, locating, upon the ground the lots designated as “No. 19

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20 of the proposed map of the Rice Tract,” as called for in said contract, save and except that no street was laid out or platted to represent Burnett avenue as called for in the ■contract. According to the map of the subdivision, the land which defendants claim should have constituted the street known as Burnett avenue was delineated thereon as Lot 22 and 10 feet off the west side of Lot 23.

The controversy involves the right of defendants to an easement over the land designated as lot 22 and 10 feet off the west side of Lot 23. The court found that, at the time of plaintiff's purchase, the contract was on record, and that plaintiff took the property subject to the contract and with notice of the existence of said street. That at the time of the execution of the contract to Moir there were improvements upon the property consisting of a dwelling-house constructed to front on the street called Burnett avenue, and that a street had been laid out in front of said property fifty feet wide, occupying what is now shown on said map of record as Lbt 22 and the west 10 feet of Lot 23 of said tract. As a conclusion of law, the court found plaintiff to be the owner of Lots 19 and 20, in Block A, of the subdivision so laid out by plaintiff, subject, however, to the terms and conditions of the contract made between Rice and defendant Frank Moir, and that plaintiff was the owner of Lots 22 and 23, in said Block A, subject to the right of defendants to an easement or right of way for street purposes over and across the same, and gave judgment accordingly. Plaintiff appeals from the judgment and an order denying its motion for a new trial.