Beck v. Swank (1921) · DecisionDepot

Beck v. Swank

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Dec 6, 1921 No. Civ. No. 3754.Published

Before: Conrey

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Holding. The court held that a vendee in default for over fifteen months without tender of payment is not entitled to rescind a contract or recover payments made, even if the vendor subsequently sells the property to a third party.

Issues

Does the lack of title in a vendor at the time of contract formation entitle a purchaser to rescind?
Does the existence of a mortgage on the property excuse a vendee's default in installment payments?
Does the acceptance of a past-due installment constitute a permanent waiver of the time-is-of-the-essence clause?
Is a vendee in long-term default entitled to recover payments after the vendor sells the property to a third party?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact that the title was not vested in Swank at the date of making the contract with Wood and Schroeder did not entitle the purchasers to rescind the contract and recover the money paid by them.”

“Such acceptance of a past-due installment was a waiver as of that date, only so far as installments then due are concerned.”

Synopsis

The facts are stated in the opinion of the court.

[553]

CONREY, P. J.

Action to recover moneys paid on account of contract for the purchase of real property. Judgment was entered in favor of the defendants. The plaintiff appeals therefrom.

On February 7, 1911, the defendant Swank, as vendor, entered into a contract with John C. Wood and George H. Schroeder, as vendees, for the sale and conveyance of the lot described in the complaint. The purchasers agreed to pay the sum of two thousand five hundred dollars in numerous monthly installments with interest. At the date of the contract title was vested in one Vassar. On June 17, 1911, Vassar executed to Scott a mortgage on the lot for the principal sum of one thousand dollars. On October 2, 1913, the contract, without any certificate of acknowledgment thereon except an acknowledgment by the purchaser Wood, dated October 2, 1913, was recorded in the records of deeds of Los Angeles County. On October 21, 1911, Vassar conveyed the lot to Swank & Letton, a corporation. On June 16, 1914,i that corporation conveyed the lot to defendant Gibson subject to the mortgage. Gibson admits that at the time of receiving that deed he knew of the outstanding contract. On January 8, 1918, Wood and Schroeder assigned their contract to Maude Mason, who on March 15th following assigned the contract to Ida Miller. On April 20, 1918, Miller executed a quitclaim deed and an assignment of the contract to the plaintiff Beck. On June 10, 1918, Scott commenced an action to foreclose the mortgage. The decree of foreclosure having been entered, a foreclosure sale took place on October 1, 1918. In September, 1919, Gibson redeemed from the foreclosure sale.

The last payment made on account of the contract was made by Miller to Gibson on March 28, 1918, and at the time of assignment of the contract to the plaintiff there was a balance of more than sixteen hundred dollars remaining to be paid under the contract. The court found that no part of said balance has ever been paid or tendered by the plaintiff or any one to the defendants, or either of them, nor has the making of said payments or the tender of said payments, or any of them, been excused or waived by the defendants, or either of them; that after making said redemption, Gibson sold the property to a third party, but

[554]

Beck v. Swank

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Synopsis

CONREY, P. J.

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