Frederick v. Fox

BARNARD, P. J. The defendant subdivided a tract of land near a naval base and not far from the eastern boundary of Kern County. In the fall of 1944, he was selling lots in this subdivision although a map had not yet been accepted or filed and much of the street and other required work had not been done. On October 1, 1944, he sold a lot to Wm. W. Johnson, giving him receipt No. 8502, which reads:

“Oct 1st 1944 8502 “Received from Wm. W. Johnson

---Twenty five---Dollars 1st pmt on lease

on Lot 1 Blk H. Kern Sub Div. 1234

How Paid Balance due

$25/00 check 75/00 Joe Fox”

[102]A month later, he gave Johnson a new receipt, numbered 8535, which reads:.

“Replacing 8502

“Oct 11944 8535 “Received from Wm. W. Johnson

---Twenty five---Dollars 1st pmt on Lot .

#12 Blk H. to be deeded upon map acceptance How paid Balance due

$25/00 cash 75/00 Joe Fox”

Lot 1 and Lot 12 in Block H are adjoining, Lot 1 being to the north of Lot 12. A map was accepted and filed in January, 1945. The Johnsons moved two cabins onto Lot 12 early in January and for some eight months lived there with their five children. In September, 1945, Mrs. Johnson, who handled the business for her husband, informed the defendant that they were leaving and requested a paper to show that they had a right to transfer their equity in the property. The defendant signed and gave her a paper, which reads:

“I will transfer Lot Equities upon endorsement of receipt of lot payments.

“Joe Fox

9/7/45”

On the same day Johnson sold the two cabins which were on Lot 12 to the plaintiff and, when they were paid for, endorsed receipt No. 8535, transferring his equity to Mrs. Frederick. Mrs. Frederick moved in and was still living on the property at the time of the trial. The defendant, who lived seven blocks from Lot 12, did not inform either Johnson or Mrs. Frederick that a map had been accepted and filed, and did not tender a deed. Mrs. Frederick, made several unsuccessful efforts to find the defendant at home and when she finally found him in May, 1946, he refused to recognize that she had any interest in the lot. It was first stated that he intended building on the lot himself. Later, he said that the Johnsons had agreed to erect a $2,500 building on the lot and operate a cleaning works and that this agreement had not been kept. About six months later, the defendant brought an action in ejectment in the justice’s court. Thereafter, the plaintiff brought this action for specific performance of the agreement to convey Lot 12, offering to pay the balance of $75.