Rapp v. Rapp

WASTE, C. J.

On May 1, 1924, the plaintiff and defendant, who were then husband and wife, entered into a written agreement for the settlement of their property rights. Among other things, the written agreement provides “that said second party [Iljalmar Rapp, plaintiff herein] does hereby accept and receive from first party [Edith W. Rapp, defendant herein] in full settlement of his right, title, interest, claim or demand in and to said property, community or separate, and whether the same consists of real property, money or other securities, the sum of Seven thousand four hundred ($7,400) dollars, payable as follows: One thousand ($1,000) dollars upon the execution of this agreement, the receipt whereof is hereby acknowledged, and the sum of Six thousand four hundred ($6,400) dollars upon the sale of the premises situate in the City and County of San Francisco and known and designated as No. 1650 Jones Street, but, and provided, that on the sale of said property, said second party agrees to accept the sum of Six thousand four hundred ($6,400) dollars to each of said parties, but should the sum of $14,800 cash be not obtained from said sale then the second party agrees to accept on account one-

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half of the cash received, after first deducting the aforesaid sum of One thousand ($1,000) dollars to be paid to first party, and to accept jointly with first party a mortgage on said property for any balance that may be due second party; said mortgage when executed and delivered by the purchaser to be deposited with the Wells Fargo & Union Trust Company of San Francisco, the costs of said escrow to be borne equally, and said escrow to provide that thereafter all payments made on account of said mortgage, principal and interest, to be equally divided between the parties hereto until second party shall have been paid said balance in full with interest on said balance and to be paid to them by said Trust Company”.

The present controversy concerns itself with the rights of the plaintiff under the quoted provision. The court below found and concluded that the apartment property, though standing in defendant’s name alone, was community property; that at the time of the execution of the property settlement agreement it was mutually understood that it would be sold without unreasonable delay; that more than a reasonable time has elapsed since the execution of the agreement without any sale having been made; that one year following the execution of the agreement was and is a reasonable time within which the defendant could and should have sold the apartment property; that plaintiff is entitled to judgment against defendant in the sum of $6,400 with interest; that he is entitled to a lien on the property to secure the same; and that if the judgment remain unpaid three months from entry, the property is to be sold by a designated referee subject to confirmation by the court. Judgment was accordingly entered and this appeal followed.