Heilig v. Parlin

VAN DYKE, J.

January 2, 1891, the appellant, Heilig, and respondent, Parlin, entered into an agreement, in writing, for the sale, by Parlin to Heilig, of a certain twenty acres of land in Kings County, then belonging to Parlin. Heilig was required by the agreement to take possession of the land and to make certain payments, and at his own expense set out to vines or fruit trees one fourth of said land each year for four successive years, and keep the same in good growing and thrifty condition. Thereupon the vendee, Heilig, entered into possession of said land and performed the conditions and paid all the portion of the purchase price required up to February 2, 1895, amounting to $885.45, and the costs of the improvements, amounting to $1,455. The payment due February 2,1895, not having been paid, eight days thereafter, — to wit, on the 10th, — Parlin, the vendor, served a notice, in writing, demanding possession of the land, and notified the vendee that the contract was absolutely abandoned and determined because of the failure to make said payment, and soon thereafter he took possession of said land, and on March 19, 1895, commenced an action in the superior court of Kings County to quiet title to said twenty acres of land. Heilig, as defendant in said action, answered, and also filed a cross-complaint, setting out, in substance, the contract referred to, and .alleging due performance up to the date of the ouster, and praying judgment on the cross-complaint for the amount of the purchase-money paid and money expended under the contract. Parlin, the plaintiff in that action, filed a general demurrer to the answer and also to the cross-complaint, which demurrers were sustained by the court, and Heilig, the defendant therein, declining to amend, his default was taken, and judgment entered in favor of Parlin, plaintiff therein, quieting his title to said tract of land. Thereafter, in December, 1896, this action was brought to recover the portion of the purchase price paid on the land and the money expended, on the ground, as alleged in the complaint, that the contract was rescinded on the part of the vendor, the defendant herein. On the trial of this case, after the plaintiff had rested, the defend

[101]

ant offered, and the court admitted in evidence, against the objection of the plaintiff, the judgment roll in the former action, rendered January 18, 1896, in which the defendant herein was plaintiff and plaintiff herein was defendant, that being the action to quiet title to the twenty acres of land in question. At the' request of the defendant, the court also instructed the jury that said judgment “is a former adjudication of the action now before you, and is a bar to the plaintiff’s recovery in the present action, and you are instructed to return a verdict for the defendant.”