Mills v. Rossiter Eureka Etc. Mfg. Co.

HENSHAW, J.

The action was to quiet title. Defendant Whitney alleged an interest in the land growing out of an assignment to him of a certain contract for its sale. Judgment passed for plaintiff and defendant Whitney appeals.

The undisputed facts are that one E. M. Morton went into possession of the land in controversy on the twenty-first day of July, 1906, under a duly executed executory contract to pay for the land at the rate of ten dollars a month for forty consecutive months. While so in possession he entered into a contract with defendant Whitney to the effect that he would sell to Whitney his equity in the land for the sum of two hundred and fifty dollars, and that in the event that Whitney did not sell the property within six months from date then Morton agreed to pay to Whitney a premium of one hundred dollars above and in excess of the amount that Whitney “has in said property at the end of the said six months.” Whitney, in identical language, agreed to pay two hundred and fifty dollars for Morton’s interest, and further agreed that in the event that he failed to sell the property within six months from the date, that he would deliver it to the party of the first part “in consideration of a premium of one hundred dollars ($100) above and in access

{sic)

of the amount that the said second party has in said property.” This contract was never recorded; Whitney never took possession under it, and Morton remained in possession of the land and of the original executory contract for the sale thereof. Morton made improvements upon the land at his own cost and expense, these improvements consisting of a two-story frame store building and a dwelling house. Morton and plaintiff came into negotiation while the former was so in possession of the land. The negotiation ended in plaintiff paying to Morton for his interest in the land about four thousand dollars, a full and fair equivalent. Morton was delinquent upon the monthly payments and plaintiff also made these. Morton surrendered to plaintiff possession of the property, and, likewise, made written assignment of the original contract by indorsement

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thereon, and surrendered this contract to plaintiff. Upon January 22d of the following year plaintiff first became advised of defendant’s claim by a note from the latter which declared that he would like to meet plaintiff “in regard to a lot in Redondo of which Mr. E. M. Morton has sold his equity to me and I understand has since sold same to you and has since skiped.” At the time this intimation was received plaintiff had been in possession of the property for about two months, had made all payments delinquent and current under the contract, and had added substantial improvements. He fulfilled the contract, according to its terms, received the deed from the vendors, and began this action.