Cocke v. Iwanaga

CRAIL, P. J. This is an appeal by the plaintiff and cross-defendants from a judgment in favor of the defendants. The action started as a suit to quiet title, but when it developed that the defendants had paid to plaintiff all or substantially all of the purchase price of the land it turned into one for an accounting and for specific performance.

The plaintiff and the defendant Iwanaga entered into a written contract on June 24, 1926, under the terms of which the plaintiff agreed to sell and Iwanaga agreed to buy 33 acres of land for $30,400, payable $8,000 in cash on execution of the agreement arid thereafter at the rate of $3,000 per annum on May first of each year, the vendee to pay the annual taxes. The $8,000 was paid in hand. The plaintiff agreed to give a deed to the property together with a certificate of title upon full payment. Payments were made through the years.

However, it developed that on January 28, 1925, the plaintiff had made a contract to sell the same land to Masaki and there never has been a clearance of the Masaki agreement. At the date of the defendants’ contract and prior thereto and for years thereafter, the 33 acres was a one-half part of a larger tract, the legal title to all of which was vested in the plaintiff’s brother. Prior to the contract also this brother had procured a loan of $10,000 from the Federal Land Bank and had placed a mortgage on the entire tract to secure the [90]same. The loan is payable in semi-annual instalments of $150, including interest. This mortgage still remains a lien upon the entire tract including the 33 acres.

Because the legal title was vested in the plaintiff’s brother, who disputed the plaintiff’s claims, it was necessary for the plaintiff to bring an action against him for the determination and recovery of the plaintiff’s title, and a judgment in favor of the plaintiff and against the brother was entered December 29, 1927. The judgment appointed a commissioner to execute a deed to plaintiff for his one-half of the lands, but execution of the deed was never obtained until October 28, 1932.

Other facts must be stated in this complicated situation. Prior to entering into the contract with defendants, plaintiff had executed two deeds to the cross-defendants, Lewis and Smith, for 2y2 acres each. Each of these deeds has the singular characteristic of making a grant of an undivided 2% acres in 36.999 which went to the plaintiff under the judgment and commissioner’s deed. So far as we can find in the record, these 5 acres were not located upon any particular parcel of the plaintiff’s land. The contract of sale between the plaintiff and the defendant, by its terms, excludes ‘ ‘ a certain strip of land of five acres adjacent to that premises owned by” the brother. The defendants have paid the taxes upon the whole of the lands of plaintiff, including these 5 acres, since the contract was entered into. Furthermore, the plaintiff’s brother had a prior lien on the plaintiff’s portion of the land, and on June 11, 1929, brought an action to foreclose this lien. He obtained judgment and purchased the property at execution sale. Plaintiff was unable to pay the judgment or redeem from the sale and requested defendants to effect such redemption. The plaintiff agreed orally at this time that in case defendants should redeem the property the plaintiff would turn over to defendants the title to the property and in case any balance remained due the balance could subsequently be adjusted. Thereupon defendant Iwanaga borrowed the necessary money from the Yokohama Specie Bank, Ltd., and executed to that bank an assignment of the purchase contract, and the commissioner issued his certificate of redemption from the sale, but issued the same to the plaintiff. The next day, October 15, 1931, the parties hereto assembled and went over the accounts and the plaintiff signed a written statement acknowledging payment of all interest to