Rogers v. Bailey

GRIFFIN, J. In an action to quiet title, containing the usual allegations, plaintiffs alleged that on April 22, 1940, they were the owners of certain property in San Bernardino County and that defendants claimed an interest therein adverse to theirs, and sought to have plaintiffs’ title quieted. The approved bill of exceptions shows that on April 22, 1940, plaintiffs entered into a written agreement for the sale of the property to defendants for $2,500, to be paid as follows: Defendants to pay $300 on signing the contract; $200 was to be paid in escrow, which escrow was to “start” not later than January 22, 1941. Plaintiffs were to have five months’ notice from “start” of escrow, to vacate the premises and were to “accept” a loan of $2,000 for the balance. As of May 1, 1941, defendants were to “take over” payments due on a certain water heater contract, to pay $10 on the 15th day of each month on the contract of purchase of the real property until the time of escrow, which payment was to include interest at 6 per cent on $400. The contract, prepared by plaintiffs, then provided that in the event of a failure of defendants to comply with the terms of the agreement plaintiffs “may be released from all obligation ... to convey said property” and defendants “shall forfeit all right thereto, together with the improvements thereon, and the right to the possession thereof.” Defendants agreed to pay all taxes, “water rent and assessments as they became due at least ten days before the same became delinquent.”

The engrossed bill of exceptions further shows that plaintiff Ora Guy Rogers testified that defendants did not make the initial payment of $300 agreed upon at the time of the signing of the agreement but paid it at a later date in installments; that defendants failed to make the monthly payments agreed upon, when they became due, but made most of them at a later date; that on January 23, 1941, defendants quit making any payments at all; that they were not able to make the $200 payment provided for in the agreement and that therefore no escrow was ever opened, although plaintiffs were at all times able and willing to go into escrow and so notified defendants; that defendants were unable to “place” a loan of $2,000 on the property. Exhibits in the form of letters from defendants [670]clearly indicate that for many months defendants were endeavoring to secure a loan on the property for $2,000 but failed. The evidence further shows that on January 23, 1941, plaintiffs offered and sent to defendants a new contract wherein defendants would be given credit for payments made up to the time of default, pay $200 into escrow, and pay out the balance of the purchase price in monthly payments, but defendants refused to sign such a contract; that on February 4, 1941, plaintiffs notified defendants of their default, gave them thirty days to cure it, but defendants refused; that plaintiffs then notified defendants that the agreement was breached by them and that plaintiffs had cancelled it. Defendants then recorded their original agreement and clouded plaintiffs’ title. This action followed.