Darter v. Schuyler

NICOL, P. J.,

pro

tem.

This action was commenced by plaintiff to quiet his title to a certain tract of land in the county of San Joaquin, which land he purchased from one J. A. Coley on the twenty-seventh day of June, 1917.

On May 13, 1914, an agreement was entered into between the said J. A. Coley and defendant Mary R Schuyler, by which Coley agreed to sell and the defendant agreed to buy the said land for the purchase price of $53,000. The agreement acknowledges the receipt of $18,000, being the value placed on certain lots in Oakland, and the balance of the purchase price, amounting to $35,000, to be paid before July 1, 1919, together with interest at the rate of six per cent per annum on all deferred payments, interest to be paid annually. The agreement provides that in consideration of the defendant being given possession of the premises, she agrees to pay all taxes which may be levied or assessed on the premises. That by the terms of the contract, it was expressly provided that time was of the essence thereof, and that in the event of the failure of said Mary R Schuyler to make any payment at the time the same became due, or within thirty days thereafter, that the contract should become null and void and the said Mary R. Schuyler

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should forfeit all right thereto and to all moneys theretofore paid on account of the said agreement.

The defendant failed to make the payments as provided by the contract and as to her failure in this regard the court found, “That subsequent to the execution of said contract said defendant Mary R. Schuyler made certain payments thereunder aggregating the sum of $1,927.46 and no more; and all of such sum was paid before the first day of January, 1916. . . . That said Mary R. Schuyler failed, neglected, and refused to pay the interest on the purchase price mentioned in said contract or any part thereof as the same became due or otherwise, and also failed, neglected, and refused to pay the taxes levied upon said premises subsequent to the first installment of taxes for the year 1915. That said J. A. Coley made frequent demands upon said Mary R. Schuyler for the payment of the interest and taxes due from her under said- contract prior to August 16, 1916. That on the date last mentioned said J. A. Coley notified said Mary R. Schuyler in writing that she was in default and had been in default for more than thirty days in the payments then due and payable under the terms of said contract, and that if she should fail for ten days thereafter to perform said contract and make the payments then due thereunder that she would forfeit her rights under said contract. That said Mary R. Schuyler continued to fail and neglect to make payment of the interest and taxes then due and payable from her under said contract, and has never made nor tendered any amount whatever to apply on said contract since the sixteenth day of August, 1916.”