Weatherbee v. Sinn

California Court of Appeal Jun 2, 1925 No. Docket No. 5118.Published

Before: Tyler

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Holding. The court held that the plaintiff had no enforceable interest in the property against the defendant because the unacknowledged contract did not provide constructive notice to the defendant, and the trial court's finding that the defendant lacked actual notice was conclusive.

Issues

Whether an unacknowledged contract of sale provides constructive notice to subsequent purchasers.
Whether the trial court's finding that a subsequent purchaser lacked notice of a prior contract is conclusive.
Whether the vendor's waiver of time-is-of-the-essence provisions requires a specific notice period for future performance.

Disposition. affirmed

Quotations verified verbatim against the opinion

“An acknowledgment by the vendees alone under a contract of purchase of real property is insufficient to give the successors of the vendor the constructive notice which would otherwise result from the recordation thereof”

[100]

TYLER, P. J.

Action to quiet title to certain lands. The complaint contains two counts—the first being one to quiet title, the other to recover the sum of $600, as money paid on the contract to purchase certain real property. The facts are as follows: On or about the twelfth day of June, 1916, Ewing, McDaniel

Meux, a corporation, entered into an agreement with A. P. Weatherbee and R. S. Weatherbee, assignors of plaintiff herein, for the sale and purchase of an acre of land described as Lot 6 of Woodrow Acres, Fresno County, California. The corporation agreed to sell, and the Weatherbees agreed to buy the land and improvements thereon for the sum of $1,250. The contract required the payment of twenty five dollars upon the execution of the instrument, and the balance of the purchase price at the rate of fifteen dollars per month, payments to first apply upon interest and the balance upon

principal;

it also required the vendees to pay all taxes and assessments which might become due upon the property from the date thereof. It contained a provision that in the event of failure on the part of the vendees to comply with its terms, the vendor could be released from all obligations in law and equity to convey the property, the vendees to waive all rights thereunder, and all money paid thereon to be considered as liquidated damages for the nonfulfillment thereof, the moneys received by the vendor to be applied as a reasonable rental for the use and occupancy of the said premises.

Time was declared to- be of the essence of the contract. The vendees went into possession and payments were made by them at irregular intervals, the last being on May 16, 1921. At this time the Weatherbees were delinquent in an amount of $242.60, and after application of the payments to the interest, the unpaid portion of the principal was the sum of $1,001.68 or thereabout, and none of the taxes for the year 1921 were paid by the vendees. On August 26, 1921, and after the vendees had been in actual occupancy of the premises for a period of over five years, and about the time they had abandoned their possession, a communication was sent to each of them by the company notifying them of their noncompliance with the terms of the contract. This notice demanded the payment of the amount of which the vendees were in default by September 1st following, and advised

Weatherbee v. Sinn

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TYLER, P. J.

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