Kerns v. McKean

California Supreme Court Jul 22, 1884 No. No. 8,040Published

Before: Thornton

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Holding. The court held that a vendor who has reserved a contractual right to declare a forfeiture and re-enter land upon default is entitled to possession, and that such rights are not waived by delay or the death of the vendee. However, because the trial court's findings regarding the nature of the defendant's possession were contradictory, the judgment was reversed for a new trial.

Issues

Whether a vendor's delay in declaring a contractual forfeiture constitutes a waiver of the right to re-enter the premises.
Whether a vendor is required to present a claim against a deceased vendee's estate to recover possession of land held under a contract.
Whether findings of possession under a contract and adverse possession are legally contradictory.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The law did not require Patterson to present any claim against the estate of Sanford to his administrator. He asked nothing against the estate. He was merely claiming his own property.”

“On account of the contradiction in the above findings, the judgment is reversed and the cause remanded for a new trial.”

Synopsis

CONTBAOT FOB SALE OF LAND — POBFEITTJBE — WAITEB—AdHINISTBATION.— Where by the terms of a contract for the sale of lands the vendor is authorized, upon default in the payment of any installment of the purchase money or interest thereon, to declare the contract forfeited by depositing a written notice to that effect in the office of the county recorder of the county where the lands are situated, and to enter immediately into the possession of the premises, and be restored to his former estate therein, held, the vendor’s right to possession was not lost by mere delay in declaring the forfeiture, nor by the death of the vendee before such declaration, nor by a failure to present a claim to the administrator of the vendee.

Apfeal — Contbadictobv Finding. — Where the findings are contradictory, the judgment will be reversed.

Thornton, J. Action to recover possession of a parcel of land situated in the county of Santa Cruz. The defenses set up do not invoke any equity for defendant’s protection. They are purely legal, and go to the plaintiff’s claim to recover on his legal right to the possession. No equity to a specific performance of the contract referred to in the findings between Patterson and Sanford is put forth in the answer. Therefore the cases cited for respondent are not applicable.

The court rendered the following decision:—

“First—On and before the 25th day of October, 1867, W. H. Patterson was the owner of the premises described in plaintiff’s complaint, holding the same by regular mesne conveyances from the heirs of José Amesti, a claimant of a grant from the Mexican government, which was in due form confirmed and patented to the heirs of said Amesti by the United States authorities.

“Second—That while said Patterson was so the owner of said premises, and on the 25th day of October, 1867, he made, entered into, and executed an agreement in writing with one A. P. Sanford, by the terms and conditions of which the said Sanford agreed to pay said Patterson the sum of $3,336, at the time and in the manner following, to wit:—

October 25, 1867.................................................. $500

October 25, 1868 .................................................. 709

October 25, 1869 .................................................. 709

October 25, 1870 ................................................. 709

October 25, 1871 .................................................. 709

Together with interest on said sums unpaid from October 25, 1867, at 10 per cent per annum, with like interest on all sums unpaid. The interest, if not paid, to be compounded from month to month. .It was also provided in said agreement that [413]Sanford should keep all the taxes of every kind, laid, imposed, or assessed thereon, or which might prima facie appear to be laid, imposed, or assessed thereon, paid.

“Third—In consideration of these payments thus to be made, Patterson agreed and covenanted to execute to Sanford, upon the full payment of said several sums, a conveyance to the tract in question. It was further provided that in the event default should be made in the payment of any of said installments, either of principal or interest, or the payment of any taxes when the same became due, or should appear to be due, that the whole principal and interest should be due at the election of said Patterson, and that said Patterson might declare said agreement, and all the rights of said Sanford thereunder, forfeited and ended, by depositing written notice that he declares the same forfeited, in the office of the county recorder of Santa Cruz County, and immediately thereupon said Patterson should be at liberty and have the right to re-enter into the free and full possession of said premises, and should be restored to his former estate therein, and remove all persons therefrom, and all payments thereto made thereon by Sanford should be retained as the compensation and equivalent for the use of said premises prior to said forfeiture. It was further provided in said agreement that said Sanford should take immediate possession of said premises, and hold possession thereof until default should be made in some one of the covenants and agreements contained, to be kept and performed by said Sanford. That said agreement was executed in duplicate, one of which was delivered to Sanford, the other to said Patterson. Said agreement, as attached to defendant’s answer, is hereby referred to and made a part of this finding.

Kerns v. McKean

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