Kelso v. Slosburg

MARKS, J.

This is an action for the specific performance of a contract of sale and purchase of lot ten of R. Zellner’s subdivision of a part of block eight of the Los Angeles Homestead Tract in the City of Los Angeles, which was owned by respondent Ivan Kelso and Mathilda L. Kelso, his wife.

On May 31, 1927, respondent was approached by appellant and Henry Horn in an effort to buy the above-described real estate. After some negotiations an oral agreement was reached whereby respondent was to sell the real estate to appellant for the sum of $9,750, with the house thereon removed. Appellant paid respondent $250 on account of the purchase price. Tfie westerly ten feet of the lot was subject to the easement of a recorded driveway

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agreement between respondent and Frank C. Egan, deceased, and an option in Egan to purchase the westerly two and one-half feet of the Kelso property. The binding legal effect of this agreement was questionable. Appellant desired to have this record cloud removed from the title and respondent was of the opinion that the Egan agreement was void and could be voided without much trouble or delay. Appellant orally agreed to pay respondent an additional sum of $100 when this was accomplished.

On June 1, 1927, respondent and appellant went to the Central Escrow Office of the Pacific Southwest Trust and Savings Bank in Los Angeles and signed escrow instructions for the sale and purchase of the lot whereby appellant agreed to pay the total sum of $9,750 for it—$9,500 through escrow in addition to the $2'50 which he had paid to respondent the day before. His written requirements as to the title were that it should be “free of incumbrances except: all taxes for the fiscal year 1927-1928, if any, and all taxes and assessments levied or assessed subsequent to the date of these instructions; conditions, restrictions, reservations, rights, rights of way and easements now of record, if any; and subject to an option to purchase the westerly

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feet of the above described property”. His escrow instructions also contained the following: “I will also execute and deliver to you before the time limit hereinafter named any instruments and additional funds required from me to enable you to comply with these instructions, all of which you are authorized and instructed to use provided on or before July 1st, 1927, instruments have been filed for record entitling you to procure an assurance of title in the form of a Guarantee, Continuation guarantee, Certificate, Continuation Certificate of Title or Policy of Title Insurance with liability of title company limited to not less than $9750.00 (if a Continuation Guarantee or Certificate is procured the above liability shall apply to it only) as to the following described property. ... In the event that the conditions of this escrow have not been complied with at the time provided herein, you are instructed, nevertheless, to complete the same at any time thereafter as soon as the conditions (except as to time) have been complied with, unless I shall have made written demand upon you for the return of money and instruments deposited by me.”