Coffman v. Bushard

HENSHAW, J.

Plaintiff and defendant had by deeds effected an exchange of properties, plaintiff conveying to defendant a house and lot at Riverside, California, in exchange for a house and lot at Goldfield, Nevada, owned by defendant. This action was brought to rescind the sale upon the ground of fraud and deceit. The court found in accordance with the allegations of the complaint and decreed a rescission of the contract and a restoration to each of the parties of the property formerly owned by him. One of the frauds and misrepresentations was to the effect that the Goldfield property was rented for forty-two dollars a month. The court found that it was not rented, was not in a condition to be rented, that plaintiff had received no income of any kind from it, and.had paid the taxes thereon, the amount so paid not being declared. It found that defendant had received three hundred and fifty-two dollars rents from the Riverside property. It further found that defendant had made outlays on- account of the Riverside property for repairs, taxes, and interest upon a mortgage. It decreed, as has been said, a restoration to each of the parties of the property formerly owned by him; decreed payment by plaintiff to defendant of two hundred and twenty-five dollars laid out by defendant upon the Riverside property, and authorized the defendant to retain three hundred and fifty-two dollars,

[665]

the amount of the income derived by him from the Riverside property. And finally, it struck out plaintiff’s cost-bill, refusing to allow him costs.

From these three several portions of the judgment plaintiff appeals. His appeal is met by a motion to dismiss. The facts upon which this motion is based are that, in accordance with the decree, defendant tendered the deed to the Riverside property, which plaintiff accepted, and plaintiff, in turn, made a like tender of his deed of the Nevada property. Upon this respondent insists that plaintiff has accepted the benefits of the judgment and, upon familiar principles, has waived his right to complain of it and so to appeal from it.

(San Bernardino Co.

v.

Riverside Co.,

135 Cal. 618, [67 Pac. 1047].) But plaintiff has appealed only from certain portions of the judgment. Defendant has taken no appeal. There is thus no controversy whatsoever over the decree ordering a re-exchange and transfer of the properties. In accepting this portion of the judgment plaintiff takes only that which indisputably he is entitled to receive. His appeal is from minor portions of the judgment, in no way depending upon the transfer of the property decreed by the court. He insists that in certain minor particulars the decree does not do equity. His acceptance of his property under the indicated circumstances, the taking of that which indisputably is his, does not estop him from prosecuting his appeal and asserting his rights to other allowances which the court refused to grant.