Kerns v. Dean

McFarland, J. Plaintiff had judgment, and defendant appeals from the judgment, and from an order denying a new trial.

Many of the facts and questions involved in this case are identical with those which were before this court in the cases of Kerns v. McKean, 65 Cal. 411; Kerns v. McKean, 76 Cal. 87; and Kerns v. Dean, 6 Pac. Rep. 704. The most of the facts are stated in the opinion of the court in said case of Kerns v. McKean, 65 Cal. 411. It is sufficient to say here that on October 25, 1867, W. H. Patterson, being the owner in fee of the land described in the complaint, made a written contract with A. P. Sanford, now deceased, by which the latter agreed to pay the former a certain sum of money,—five hundred dollars in cash, —and the balance in four equal annual payments, with a stipulated interest; and Patterson agreed that upon the payment of said money he would convey the land to Sanford. By the terms of the contract Sanford was to have possession of the land, and he immediately took possession under the contract, and he and his administrators have been in possession ever since. It was provided that if Sanford failed to pay any installment when due, Patterson might declare the contract, and all of Sanford’s rights thereunder, forfeited and ended, by depositing a notice to that effect in the office of the county recorder. It was also provided that Sanford should pay all taxes on the land, and that upon a forfeiture Patterson should retain all moneys that should have been paid by Sanford as compensation for use of the premises Patterson filed the notice of forfeiture on the eighteen^ day of September, 1875; and on December 13, 18 [558]he conveyed the land to plaintiff. Sanford died September 4, 1874. Dean was removed as administrator, and Edward White was appointed and substituted as appellant, after the appeal reached this court.

The complaint avers that Sanford has paid altogether $1,200 on said contract; that no other amount has been paid thereon by him, or by defendant, or any other person, and that a large sum remains unpaid,—amounting, as found by the court, to $9,017.90. This is denied by the answer, in which it is averred that the whole amount had been paid. The issue thus made was the principal matter of fact in contest. The plaintiff, to maintain his side of the issue, was allowed to introduce, over the objection of defendant, a certain account-book of Patterson, which showed that Sanford had made three several payments, amounting in all to $1,200,—the purpose being to show that no more than that sum had been paid.