Laguna Land & Water Co. v. Greenwood

THOMPSON (R. L.), J.,

pro

tem.

This is an appeal from a judgment upon a cross-complaint awarding specific performance of a contract to sell real property.

The appellant filed its complaint tó quiet title to the east 30 feet of lot 836 of plat 3398, recorded in Book 37 of Maps, page 43, Los Angeles records. To this complaint the respondent filed an answer and cross-complaint, alleging that four years prior to the commencement of this action appellant executed a written contract of sale of said lot to the defendant Emery Greenwood for the sum

[572]

of $635, to be paid in equal monthly installments’ of $6.25; that the defendant Greenwood thereupon entered into possession of the premises and constructed a dwelling-house thereon at a cost of $1,000, and that he performed all of the covenants of said contract on his part. The contract was made a part of the cross-complaint, and among other covenants which it contained was a provision prohibiting the buyer from erecting or maintaining a dwelling-house on the property which would cost less than $1,500, except for temporary purposes, in which event it was necessary to obtain the written consent of the grantor. The contract also provided that it could be assigned only by the written consent of the grantor.. Time was made the essence of the contract, and a forfeiture was declared for the breach of any of its covenants. The value of the land was not alleged in the cross-complaint, and nowhere in the pleadings does it appear that the consideration for the sale of the property was adequate, or that the contract was just and reasonable. It was further alleged that on June 9, 1923, the respondent agreed to purchase said lot, together with the improvements thereon, for the sum of $1,100, upon which the sum of $525 was paid to the defendant Greenwood. On July 25, 1923, the respondent tendered to appellant the sum of $300, which was the balance unpaid upon the purchase price, which the appellant refused to accept until the respondent agreed in writing to conform to the contract and erect a dwelling-house on said premises at a cost of at least $1,500. This was at first declined, and six months later this action to quiet title was commenced.

The evidence shows that the contract between appellant and the defendant Greenwood was made as alleged, and that substantially $300 of the purchase price remained unpaid; that Greenwood was a poor old soldier, and that while appellant frequently urged him to comply with the covenant not to build a house upon the premises of less value than $1,500, this requirement was not enforced against him. A memorandum of agreement to sell the premises to respondent for $1,100 was signed by defendant Greenwood, and he acknowledged the receipt of the sum of $525 as part payment, but he never executed an assignment of the contract or a conveyance of the property. Both the respondent and Greenwood did, however, call