Kimball v. Snyder

SHENK, J.

This is an appeal from a judgment for the plaintiffs in an action to quiet title to real property in El Dorado County, comprising five parcels of improved and unimproved land aggregating about 42 acres and known as Lakeside Besort.

On the twelfth day of March, 1927, the plaintiffs were the owners of said Lakeside Besort. On that day they entered into a contract for the sale of said land and property to the defendants for a total purchase price of $30,500. The contract provided for payments of $5,000 on the first day of October, 1927, and on each first day of October thereafter until the full balance of the purchase price should be paid, with interest at seven per cent per annum, payable monthly. The defendants entered into possession and conducted the resort for three seasons, until about October, 1929, when they defaulted in.the payment due on October 1st of that year to the extent of $4,500, the sum of $500 on this payment having previously been paid. The contract provided that in the event of the defendants’ default in making payments and such default should continue for a period of sixty days after notice thereof in writing, then the plaintiffs might elect to declare all rights under the agreement forfeited by a notice in writing to that effect, and upon such notice all rights and obligations of the respective parties by virtue of said agreement should be forfeited and released and payments theretofore made should be retained by the plaintiffs as liquidated damages. Time was made the essence of the provision.

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On October 2, 1929, the plaintiffs duly notified the defendants of their default and on December 4, 1929, the payment in the meantime not having been made, the plaintiffs notified the defendants of their election to declare all of the defendants’ rights under the agreement forfeited. On December 5th the plaintiffs commenced this action to quiet their title to the property involved. Upon the trial the court made its findings in favor of the plaintiffs and judgment was entered accordingly.

The only question presented is whether the court erred in its conclusion that the defendants were not entitled to have their title quieted to certain designated portions of the unimproved parcels of the land involved. Paragraph 3 of the agreement provided that the plaintiffs would execute and deliver a good and sufficient deed to any portion of the unimproved land upon the payment of $400 per acre for parcel No. 3, $1200 per acre for the easterly half of parcel No. 4, $1,000 per acre for the westerly half of parcel No. 4, $500 per acre for parcel No. 5, and at the same rates for any fractional part of an acre. The contract also provided that all payments made by the defendants for the purpose of securing the delivery of deeds to parcels of said property pursuant to the provisions of paragraph 3 should be deemed also to be payments on account of the next succeeding installment or installments of the purchase price. Prior to their default the defendants had made payments on the principal aggregating $8,500. On the second day of the trial, and not before, the defendants served on the plaintiff a demand for a deed conveying to them certain designated portions of parcels 4 and 5, the value of which, computed pursuant to the provisions of paragraph 3 of the agreement, aggregated $8,250, and which sum the defendants in their demand stated had theretofore been paid to the plaintiffs upon .the purchase price. The trial court found the facts herein stated and concluded that the rights of the defendants were forfeited and terminated on December 4, 1929, and that the defendants were not entitled to a deed to any of said land.