Holden v. Johnson

California Court of Appeal Feb 3, 1950 No. Civ. No. 3863Published

Before: Barnard

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Holding. The court held that the evidence supported the trial court's finding that the parties intended to sell the specific lot marked by stakes on the ground, and that the seller waived the right to declare a default for late payments by his conduct.

Issues

Whether the evidence supported the trial court's finding regarding the specific property boundaries agreed upon in the contract of sale.
Whether the buyer was in default of the contract such that the seller could rightfully claim a forfeiture.
Whether the seller was required to tender a deed before declaring a forfeiture after a history of accepting late payments.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence, while conflicting, is amply sufficient to support the findings that the land sold to Johnson, as pointed out on the ground at the time, was the land awarded to Johnson by the judgment.”

“Every payment thus made by Johnson was late and was accepted by the appellant without objection.”

“Under these circumstances, a waiver of prompt payment appears and the court was justified in refusing to enforce a default against Johnson.”

BARNARD, P. J. The plaintiff subdivided 80 acres of land near Big Bear Lake into so-called “acre lots,” the lots being somewhat irregular in size and shape. In May, 1944, a survey of the property had been completed and stakes had been installed marking the lines of the respective lots, but no map of the proposed subdivision had been recorded. An old cabin stood on this property and the plaintiff agreed to sell this cabin, together with the lot upon which it stood, to the defendant Johnson. The purchase price was $400, payable $50 in cash with monthly payments of $25 payable on the 6th day of each month beginning June 6, 1944, with interest at 6 per cent.

The main controversy here is as to whether the lot thus agreed to be sold and on which the cabin stood was Lot 26 as then staked out upon the ground, or whether it was in fact Lot 27 as that lot appears on the map which was recorded nearly two years later. There is evidence that Lot 26, as then staked out on the ground, had an irregular northerly line and included the land on which the old cabin stood. However, when the map of this subdivision was first recorded, on April 23, 1946, the northerly line of Lot 26 was shown as a straight line, thus placing the old cabin on Lot 27.

On May 6, 1944, a written contract was executed by which the plaintiff agreed to sell to Johnson on the terms above mentioned “all of lot described as acre number 26 in Holden Acres, [874]Big Bear City, with the improvements thereon, as per map of said Tract now on record in the office of the Recorder” of San Bernardino County.

On May 26, 1945, the plaintiff entered into another contract to sell Lot 26 to Roy R. Strotz and Arthur G. Taylor for $500 on monthly payments. Johnson informed Taylor that he owned that lot by virtue of his contract of sale. Shortly thereafter, Strotz and Taylor began to construct a cabin on this lot and, subsequently, Taylor sold his interest to Strotz.

On April 11, 1946, the plaintiff brought this action to quiet his title to Acre 26, naming Johnson as the defendant. Johnson filed a cross-complaint against Holden and Strotz seeking a conveyance of Acre 26, as containing the site of the cabin, and to quiet his title as against Strotz. Strotz filed a cross-complaint against Holden seeking to recover the amount he had paid and the value of the cabin he had built, in the event it was found that Johnson had a superior title to the lot.

Holden v. Johnson

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