Thorne v. Gordon

TUTTLE, J.,

pro

tem.

This is a consolidation of two actions to quiet title to lots 9 and 10 of Tract 6698 in the city of Monrovia. Each action involved one of said lots.

The complaints are in the usual form of such an action. The answers deny the allegations of the complaint. As a further defense, defendants in each case set forth a contract of purchase covering said realty. They allege that on the day following the execution of said contract, their vendor entered upon said realty, without their consent, and removed a house of the value of five hundred dollars and three trees of the value of one hundred dollars. They state that they stand ready to make full payment of the balance due under said contracts and to fully perform the same, but pray that the court adjust the value of said house and trees, in arriving at the said balance. There is also a prayer for general relief. The pleadings in each case are practically identical.

The trial court found that the defendants had no right, title or interest in said property, and judgments were entered accordingly.

At the trial the court excluded all evidence bearing upon the second defense referred to above, and upon this ruling error is predicated.

Plaintiff introduced in evidence the deed to said property from the vendor of defendants. The contracts of purchase were then admitted in evidence. Then followed evidence of the failure of defendants to make the payments due under said contract.

The evidence of plaintiff showed and defendants admitted that on one contract no monthly payments whatever had been made, while on the other only two had been made. In other words, for some three years prior to the filing of the complaint, no attempt had been made by defendants to comply with the terms of said contract of purchase. By the terms of said contracts time is made of the essence of the same.

Appellants take the position that when said house and trees were removed (which they offered to prove) and until they were given credit on the' purchase price for damages

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