Cabrera v. Payne

KERRIGAN, J.

This is an action to recover $1,000, a deposit paid upon the purchase price of a certain piece of

[677]

real property in San Francisco. Judgment was entered, denying plaintiff any relief, and in favor of the defendants for their costs, from which judgmént and from the order of the court' denying his motion for a new trial plaintiff appeals.

Under the terms of the contract the purchaser was given twenty days from February 7, 1907, within which to examine the title to the property and consummate the purchase, and if the title was found to be defective the vendors were to have ninety days in which to perfect it, and if not perfected within that time the deposit was to be returned. Time was made of the essence of the contract.

Within the twenty days allowed for the examination of title plaintiff rejected it, both orally and in writing, upon the ground, among others, “that the records of the City and County of San Francisco do not show any valid title to said property in said Clyde Payne or Charlotte Payne, and that there is no public record of said property whatever in said City and County.” (The other written grounds of objection were subsequently waived.) About a month later, and before the expiration of the ninety days given to the vendors t'o perfect title, the plaintiff commenced this action for the return of the deposit.

Under the contract the purchaser was entitled to a good or perfect record title.

(Bates

v.

Howard,

105 Cal. 173, [38 Pac.

715]; Goldstein

v.

Henley,

4 Cal. App. 444, [88 Pac. 507];

Gwin

v.

Calegaris,

139 Cal. 384, [73 Pac. 851];