Krause v. Marine Trust & Savings Bank

THOMPSON (R. L.), J.,

pro

tem.

This is an appeal from a decree rescinding a contract to purchase real

[683]

property, and refunding the purchase price thereof, on the ground of fraud.

June 12, 1923, plaintiff entered into a written contract with the defendants Gilkey and Leeston-Smith to purchase “Lot 6, No. A, Tract 6743, being a subdivision of the east 19.80 acres of Lot 4, Range 7, of the Temple & Gibson Tract in the County of Los Angeles, as per map recorded in Book 32, page 64, Miscellaneous records of said county, in the Tract No. 6743 as per map recorded in Book-, Page-of maps in the office of the County Recorder of Los Angeles County, California,” for the sum of $2,000, to be paid in specified monthly installments. The last installment of the purchase price of this lot was not paid until June 8, 1925. This appeal is on the judgment-roll only, and the evidence is not before this court.

The plaintiff alleged, and the trial court found, that in procuring the contract to purchase the lot in question, the appellants Gilkey and Leeston-Smith exhibited to respondent what purported to be a blue-print copy of the map of said tract No. 6742, showing the dimensions of said lot, and then represented the fact to be that said lot fronted on Lemon Street in Los Angeles and extended along Washington -Street a distance of 105 feet to an alley at the rear. This map, which was exhibited to respondent, was never filed for record, although the contract of sale stated that it was situated “in tract No. 6743, as per map recorded in Book-, page -, of maps in the office of the County Recorder of Los Angeles County. ’ ’ This map, which was exhibited to the respondent was subsequently changed so as to indicate that the lot in question was but 90 feet in depth instead of 105 feet, as represented -by the appellants. This map, so changed, was for the first time filed for record July 25, 1923, after the contract for sale of the lot had been executed and delivered. The respondent was not notified of the change. The trial court found that the respondent relied upon the dimensions of the lot as shown by the map which was exhibited to him, and upon the statements made by appellants, and that he had no knowledge of the alterations of the map, or the change in the depth of the lot until his final payment had been made and the deed was tendered to him July 10, 1925, in which deed the lot was