Hermosa Beach Land & Water Co. v. Law Credit Co.

SLOSS, J.

Appeal by plaintiff from a judgment and an order denying a new trial.

The action was brought to quiet plaintiff’s title to lot 32 in block 49 of the first addition to Hermosa Beach, in Los Angeles County. The defendant, Law Credit Company, answered, alleging that it was the successor in interest of one Stiles, who, on February 15, 1902, had entered into a written agreement with the plaintiff for the purchase of the lot in question. The purchase price named in the contract was $135, of which $45 was paid in cash, and the balance was to be paid in two installments of $45 each, on October 2, 1902, and April 2, 1903, respectively, with interest on the deferred payments at the rate of seven per cent.

The answer alleged that at the time of making the agreement Stiles entered into possession of the premises; that on October 23, 1902, he made the second payment of $45, with interest to October 2, 1902; that on March 22, 1904, he paid interest to February 15, 1904; and on December 14th, he paid interest up to January 1, 1906. Plaintiff accepted all of said payments without objection. On February 3, 1906, Stiles tendered the final payment due, together with interest, amounting to $45.50. The plaintiff refused to accept the same, or to make conveyance. The answer set forth the fairness of the contract and the adequacy of the consideration, and asked judgment that plaintiff be required to accept the balance due and to make a good conveyance of the land to the defendant. The court found in favor of the averments of the answer, and entered judgment that defendant deposit with the clerk the sum of $58.31, being the balance due on the contract, together with taxes paid by the plaintiff, and that plaintiff thereupon make, execute, and deliver a deed conveying the title to said premises to the defendant.

It was alleged in .the answer, and found by the court, that when the last payment of interest was made by Stiles, it was agreed between the parties that the time for payment should be further extended beyond January 1,1906. The plaintiff attacEs the finding. We need not inquire into this point, as we

[495]

think the finding immaterial. It is undisputed that, long after the final installment became due, the appellant accepted several payments on account of interest on the unpaid balance. Under these circumstances the vendor must be held to have waived its right to declare a forfeiture for the failure to pay in time, without first tendering a deed, and putting the vendee in default.