Burdick v. Kerkovecz

KNIGHT, J.

Two appeals from a decree in a suit to quiet title are presented herein.

On December 16, 1919, the defendants entered into a written contract with Roland A. Wood-Seys, plaintiff’s father, for the purchase and sale of a' dwelling situate in the town of Avalon, Santa Catalina Island, for the sum of $3,000 cash, of which sum defendants paid $1,000 at the time the contract was executed, and agreed, as provided in the contract, “to pay the balance of $2,000 not later than the 31st day of December, 1919.

Deed and abstract to be given on full payment.

Possession to be given not later than three days after full payment.” (Italics ours.) Five days subsequent to the execution of said contract the vendor died. Shortly afterward plaintiff was appointed administratrix of his estate, and, being sole heir, succeeded to the property in question, subject to the interest acquired therein by defendants under said contract.

The sale to defendants was not consummated, and on January 14, 1921, plaintiff brought this suit to quiet title, the complaint being in the usual form, alleging ownership and possession of the property in plaintiff, and that defendants claimed an adverse title therein which was without right or foundation. Defendants, besides denying plain

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tiff’s asserted absolute title, alleged in their answer that they acquired an interest in said property by reason of said contract and the payment thereunder of the sum of $1,000; that the sale was not consummated on account of the default o£ the vendor and his successor in interest in that they failed to furnish the abstract of title as in said contract provided; that after the death of her father, plaintiff took possession of said $1,000, has since retained the same for her own use and benefit, and has refused defendants’ demand for the return thereof to them; defendants therefore prayed that plaintiff take nothing- by her action and that it be adjudged and decreed that defendants have a lien on said real property for the sum of $1,000 and interest from December 16, 1919, the date of payment.

The trial court’s findings followed substantially the denials and allegations of the answer, and thereupon an interlocutory decree was entered, in accordance with the terms of its conclusions of law, to the effect that “upon the plaintiff depositing with the court within ninety days . . . for payment to defendants the sum of one thousand dollars ($1,000), together with interest at the rate of 7% per annum from January 1, 1921, a final decree shall be made and entered quieting plaintiff’s title . . . ,” but that upon the failure of plaintiff to so deposit said sum she should take nothing by said action.