Fristad v. Thompson

BARNARD, P. J. This is an action for a rescission. On June 1, 1946, these parties entered into a contract by which the plaintiffs agreed to buy and the defendant agreed to sell a 5-aere tract of land. The purchase price was $4,500, payable $550 down, with the balance payable in monthly payments of $30, including interest. If and when the purchase price was fully paid, the defendant agreed to execute and deliver to the plaintiffs “a good and sufficient deed conveying said land free and clear of all encumbrances made, done or suffered by” him. The contract also provided for the conveyance of a 25-foot right of way across other land for the purpose of entry to the property. This contract was recorded on October 9, 1946, and all payments were made until this action was brought.

The complaint, filed in December, 1949, alleged that while the plaintiffs were not in default the defendant breached the contract by conveying to the city of Riverside, by grant deed, a perpetual easement and right of way across this property 10 feet in width and 1042 feet in length; that this deed provided that the grantee shall have the right to pass over said strip of land, and deposit tools and other material thereon, whenever necessary for the purpose of construction, reconstruction, or maintenance of a sewer; that said deed was executed on March 16,1948, and recorded on August 31,1948; that thereafter, at a date unknown to the plaintiffs, the city of Riverside went into possession of said easement and constructed a sewer line thereon with manholes and sewer con[134]neetions; and that said sewer right of way severs the land agreed to be sold to the plaintiffs into two parts, and plaintiffs cannot build over or make use of said strip because of said provisions. It was also alleged that on April 21, 1947, and on April 15, 1947, the defendant deeded certain property to third parties, including the right of way above mentioned, thereby depriving plaintiffs of said right of way. It was further alleged that by these deeds to the city of Riverside and to these third parties the defendant has put it out of his power to perform said contract, or to furnish to the plaintiffs a good merchantable title to said property; that the plaintiffs had no knowledge of the conveyance to the city of Riverside until March, 1949, and no knowledge of the deeds to the third parties until October 1, 1949; and that notice of rescission had been served and a quitclaim deed executed and made available to the defendant. The defendant’s answer alleged that he had granted to the city of Riverside a perpetual easement and right of way across this property only to the extent of his own rights in the property, and without prejudicing plaintiffs’ right under the contract; alleged that the deeds he had given to the third parties were made subject to plaintiffs’ right of way, and that the grantees in said deeds had knowledge and notice of the plaintiffs’ rights; and further alleged that the plaintiffs had been guilty of laches and unreasonable delay in bringing this action. The defendant also filed a cross-complaint, seeking to enforce the original contract.