Nourse v. Azvedo , 185 Cal. 47 ( 1921 )

This is an action to quiet title to certain real estate against the claims of the defendant growing out of a contract to purchase wherein the plaintiff was vendor and the defendant, Katie A. Azvedo, vendee, who, by cross-complaint, seeks to recover two hundred dollars, the initial payment upon the purchase price. Plaintiff recovered judgment quieting his title and the defendant, having been defeated upon her cross-complaint, appeals from the judgment against her on the cross-complaint only.

[1] By the terms of the contract time was the essence thereof. The defendant not only defaulted in the payment of future installments but attempted to rescind the contract by reason of the fact that she had changed her mind and did not desire to purchase. Respondent notified appellant that by reason of her failure to pay the future installments due the contract was terminated and her rights under the contract forfeited, and that by the terms thereof he was entitled to and would retain the purchase money so far paid. Under these circumstances the vendor was entitled to retain the money paid by the purchaser and her rights in the property terminated. (Newell v. E. B. A. L. Stone Co., 181 Cal. 385, [9 A. L. R. 993, 184 P. 659]; Lemle v. Barry, 181 Cal. 1, [183 P. 150];Hyman v. Harbor View Land Co. (Cal.App.), 188 P. 828;Darter v. Schuyler (Cal.App.), 190 P. 827.)

The appellant also seeks to rescind the contract on the ground that she was incompetent at the time she executed the same. The finding of the trial court is that she was competent. It is enough in that regard to say that the testimony of the appellant is not sufficient to overcome the presumption of sanity which is supported by respondent's evidence and by the circumstances attending the execution of the contract.

Judgment affirmed, with twenty-five dollars damages for frivolous appeal.

Sloane, J., and Lennon, J., concurred.