Mayhew v. Melby

SEAWELL, J.

Defendants appeal from a judgment for plaintiff in a suit brought by plaintiff to quiet her title to certain real property in the city of Los Angeles. Both plaintiff and defendants claim an interest in said real property derived from the Howard Park Realty Company. On November 12, 1919, said company executed a contract of sale agreeing to convey said property to one Melby, upon receipt of full payment of the purchase price, which Melby agreed to pay in monthly installments. The defendant Harry F. Burke is the assignee of the Melby contract of sale, and defendant Frances H. Burke is his wife. Said contract of sale was placed of record on May 23, 1924, and was recorded again on July 30, 1924, after the assignment from Melby to the defendant Harry F. Burke had been placed thereon. The contract was not, however, acknowledged by the Howard Park Realty Company, and, hence, the record thereof' did not operate as constructive notice to plaintiff, who claims title in fee under a contract of sale executed by the company in her favor in 1920, and a deed from said company to herself dated December 11, 1924, and recorded January 9, 1925.

No deed was ever executed by the realty company to Melby or to the Burkes. On or about August 22, 1924, defendants Burke tendered to the realty company $1,250 in payment of the amount due as principal, interest and taxes on the contract of sale under which they claim. The purchase price of the lot was $1,000, of which $250 was paid at the execution of the contract. None of the monthly installments provided by said contract to be paid had ever been paid. The said contract provided that if the buyer should fail to make payments therein promised to be made, all his rights should forthwith cease, at the option of the realty company, and without notice to the buyer, and the realty company should be released from all obligations in law or equity to convey said property, or to refund any payments made, and the buyer should thereupon forfeit all right to a conveyance and to all moneys paid, which should be retained by the realty company as rent and liquidated damages, and should surrender possession of the property on demand. Plaintiff does not here claim, however, and from the evi

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dence appearing in the bill of exceptions, it cannot be said that she asserted in the court below that any rights which Melby or the Burkes may have had were forfeited and the contract of sale terminated by their failure to pay the stipulated monthly installments for a period of almost five years.