Lewis v. Agoure

TAGGART, J.

Action to quiet title against tenant in possession of real property under lease claimed to have been canceled. Judgment for plaintiff and defendant appeals from judgment and order denying motion for a new trial.

Plaintiff holds title in fee simple to about eight thousand acres of the Rancho Guadalasca, situate in the county of Ventura, acquired by him from M. L. Wolff

et ux.,

by deed dated February 27, 1906. Wolff acquired title from Sarah Sloss and Hannah Gerstle by deed dated February 19, 1906. On

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the twenty-first day of August, 1905, said Sarah Sloss and Hannah Gerstle executed to defendant (who was then in possession of said premises under a prior lease), a lease of said lands for the term of three years, from January 1, 1907, to December 31, 1909, at an annual rental of $3,000, payable semi-annually in advance. This lease contained a stipulation that the lease might be declared null and void ‘ ‘ at the option of the parties of the first part, in the event that said parties of the first part shall sell the within described property or any portion thereof at any time during the existence of this lease. ’ ’ Upon cancellation of the lease the first parties agreed to pay to the second party, if canceled during the first year,

$1,000,

if during the second year, $750, and during the third year $500. In the event of such cancellation, “the party of the second part agrees to vacate the premises herein demised within ninety (90) days after receipt of written notice from the parties of the first part.”

In addition to the deeds mentioned, the lessors (Sloss and Gerstle) assigned the lease and their rights thereunder by indorsement to Wolff, and Wolff transferred his right therein to plaintiff in the same manner. On June 1, 1906, plaintiff notified defendant orally that he would cancel the lease and want possession of the premises on January 1, 1907. On or about July 1, 1906, defendant paid to plaintiff the last semiannual installment of rent due on the “prior lease,” at which time plaintiff advised defendant he need pay only $500, and suggested that he retain the other $1,000 in consideration of the cancellation of the lease, to take effect on the first day of January following. Defendant declined to do this and paid the $1,500 in full.