Wilcox v. Lattin

Harrison, J. Action for the rescission of an agreement for the purchase of certain real estate.

The plaintiffs and the defendant made an agreement, August 29, 1887, by which the defendant agreed to convey to the plaintiffs a tract of one hundred acres of land [592]in the county of Los Angeles for the sum of eighty thousand dollars, of which the plaintiffs were to pay twenty thousand dollars on or before the expiration of six months, twenty thousand dollars on or before the expiration of one year, and forty thousand dollars on or before the expiration of eighteen months from the date of the said agreement, and the plaintiffs executed to the defendants their several promissory notes for these amounts. The agreement also contained the following clause: “This contract is subject to an understanding and agreement between all the parties that the parties of the second part are to plat, subdivide, and place all the said land in the market within thirty days from and after the execution of these presents and it was also provided therein “ that as fast as any of said land is sold by the said second parties, said B. C. Lattin shall convey the land so sold to the purchasers, and all the moneys arising from such sales, or any sale, shall be paid to said Lattin, and applied by him on the aforesaid notes of said Wilcox and said Shaw in their orders of payment.’’

Under this agreement, the plaintiffs, within the thirty days therein specified, caused the land to be platted and subdivided in accordance with the terms of the agreement, and placed the laud in the market, and made sales of portions thereof, amounting in value to about twenty-five thousand dollars, for which the defendant executed deeds and contracts to the respective purchasers, and received the amounts for which the lands were sold, applying them upon the notes of the plaintiffs. In January, 1888, an adverse claim was made by certain parties to an, undivided half of the entire tract, and an action was commenced by them in the superior court for the county of Los Angeles against the defendant and the plaintiff's for the purpose of establishing their claim; and on the 7th of June, 1888, judgment was rendered in said action, by which it was adjudged that they were the owners in fee-simple of an undivided half of said land. It is alleged in the complaint, and also found by the court, that “ by reason of said defect in the title of the defendant, and [593]