Contra Costa County Title Co. v. Waloff

• Court: California Court of Appeals
• Writing for the Court: QUAYLE; TOBRINER, Acting P. J., and DUNIWAY
• Citation: Contra Costa County Title Co. v. Waloff, 7 Cal.Rptr. 358, 184 Cal.App.2d 59 (Cal. App. 1960)
• Decision Date: 23 August 1960
• Docket Number: No. 18702,18702
• Parties: CONTRA COSTA COUNTY TITLE COMPANY, a corporation, Plaintiff, v. Elsie L. WALOFF, Defendant, Cross-Complainant, Cross-Defendant and Appellant; and Lucy E. Moffitt, Defendant, Cross-Defendant, Cross-Complainant and Respondent.

Page 358

7 Cal.Rptr. 358

184 Cal.App.2d 59

CONTRA COSTA COUNTY TITLE COMPANY, a corporation, Plaintiff, v. Elsie L. WALOFF, Defendant, Cross-Complainant, Cross-Defendant and Appellant and Lucy E. Moffitt, Defendant, Cross-Defendant, Cross-Complainant and Respondent.

No. 18702.

District Court of Appeal, First District, Division 1, California.

Aug. 23, 1960.

[184 Cal.App.2d 61] Francis P. Healey, Richmond, for appellant.

Bernheim, Sugarman & Gilbert, Richmond, for respondent.

QUAYLE, Justice pro tem.

Contra Costa County Title Company, a corporation, filed an action in interpleader, under section 386 of the Code of Civil Procedure, to determine ownership of $3.100. This money had been deposited with it by appellant Elsie L. Waloff, hereinafter referred to as buyer, to be paid to respondent Lucy E. Moffitt, hereinafter referred to as seller, when and if a sale of certain real property was consummated.

Buyer and seller contracted in writing for the sale of seller's home and buyer had paid $500 to seller by way of deposit. Buyer also placed $3,100 into escrow with the title company to be applied on the purchase price. The sale was never closed so buyer and seller were joined as defendants. Each of them filed cross-complaints against the other. Seller sought damages alleging slander of title to said real property and for a decree quieting title thereto. Buyer sought return of the $3,100 she had put into escrow and repayment from seller of the $500 deposit.

The action in interpleader was dismissed by the court. Judgment was entered in favor of seller on her cross-complaint awarding her $1,500 damages resulting from the slander of title to the real property and quieting seller's title thereto. The $500 deposit was declared forfeited. The clerk of the court was ordered to remit the $3,100 on deposit to buyer after she had satisfied, this judgment, or in the alternative, to deduct the amount due seller and remit the remainder to buyer. Buyer appeals from said judgment.

FACTS

Seller, Lucy E. Moffitt (defendant, cross-defendant, cross-complainant and respondent herein) owned and resided in certain residential property in Richmond, California. She advertised in the newspaper in order to sell it. On or about September 8, 1956, buyer, Elsie L. Waloff (defendant, cross-complainant, cross-defendant and appellant herein) called upon seller and negotiated for the sale of said property. The record discloses that seller was inexperienced in real estate transactions and that buyer was a woman who had experience both with real estate and with the law. Buyer prepared and submitted to seller a deposit receipt bearing her signature. Seller delayed the affixing of her signature until the following day in order to check over the provisions of the agreement. This deposit receipt is dated September 8, 1956, but apparently was not signed by buyer until September 9, 1956. It provides for the sale of said property for a purchase price of $12,350, with a deposit of $500 received, the balance to be paid within thirty days from acceptance thereof by seller as follows, to-wit: 'Cash down to loan, to be negotiated by Buyer. Seller shall be permitted to remain on premises for a period of 30 days after closing. Prorations to be made as of date of possession by Buyer, and in all probability will be November 1, 1956 * * *'

During the following three weeks several discussions took place between buyer and seller as to F. H. A. financing and date of possession. On September 17, 1956 buyer sold the home in which she was residing and promised to give up possession of it by November 1, 1956. An undated letter from buyer to seller written between September 24 and 27, 1956, mentioned this fact and indicated that seller should have her papers and instructions in escrow by October 1, 1956.

On September 28, 1956 seller deposited her deed with the title company under escrow instructions consistent with the terms of sale agreed upon. Buyer at that time was urging seller to permit her to take possession at a date earlier than thirty days after closing the escrow. To this end seller signed and delivered a letter, called an 'amendment' to the original agreement of sale, in which she consented to yield possession not later than October 31, 1956 if buyer put the balance of the purchase price into escrow in time to permit closing by October 6, 1956; otherwise the deal was to be consummated as originally agreed, towit: Possession to buyer 30 days after escrow closed.

Buyer did not place the balance of the purchase price in escrow by October 6, 1956 or at all. She embarked on a course of conduct which included accusations of fraud and deceit on the part of seller and alleged that delay in closing was caused by seller. Buyer's chief complaint was that seller induced her to purchase the real property, by orally promising to give her certain furniture and furnishings that were in the house. Although the written agreement made no reference to these items and specified that all terms agreed upon were incorporated therein, buyer insisted that this personal property be conveyed to her or $1,000 be withheld from seller until possession of the premises and settlement of this claim was effected. Still anticipating that buyer would fulfill the contract, seller rented an apartment at $67.50 per month so that she would be in a position to yield possession to buyer in the manner agreed.

On October 19, 1956 seller refused to permit the withholding of $1,000 or any modification of the agreement and requested the buyer to carry out the original contract. Instead buyer executed on October 23, 1956, and recorded on October 24, 1956, a document entitled 'Rescission of Contract and Demand for Return of Deposit and Other Costs'. Buyer admitted that she knew this act on her part would have the effect of clouding seller's title and that she did it for that purpose. This document accused seller of chicanery, fraud, misrepresentation, of taking the deposit under false pretenses, and that seller was unqualified to sell her own property.

On October 26, 1956 buyer made a new offer to purchase the property. Seller's attorney advised buyer she must perform the original contract of forfeit the $500 deposit. Buyer's response was a written threat to sue; a demand that seller return the deposit; and a demand upon the title company that $3,100 in escrow be returned to her.

On December 4, 1956 the title company advised buyer in writing that seller had placed with it a Mutual Cancellation Agreement to terminate further dealings between the parties as to this property. Buyer refused to execute it. On January 3, 1957 buyer executed a 'Notice of Pending Escrow', which she recorded on January 4, 1957. On February 14, 1957 one Delucchi offered to buy the property in question but could not get good title from seller because of the recordation of the documents above referred to.

On April 26, 1957 buyer advised the title company that she intended to go through with the original agreement. But she failed to secure a bank loan or complete F. H. A. financing or place the balance of the purchase price into escrow. On May 8, 1957 the title company filed a complaint in interpleader naming buyer and seller as defendants and deposited the sum of $3,000 in court.

At the trial buyer admitted that seller's property depreciated $350 during the period of time that these events were taking place. She further testified that seller was not qualified to sell her own property. The evidence showed that a real estate broker's commission on such a sale would be at least $600. Seller expended $135 on renting an apartment so she could move out and give buyer possession by November 1, 1956. These elements of damage total $1,085.

The court found that buyer failed and refused to pay the balance due under the terms of the agreement; that buyer in recording said 'Rescission of Contract and Demand for Return of Deposit and Other Costs' and said 'Notice of Pending Escrow' acted maliciously and in order to vex and harass seller and that she knew that recording said instruments would decrease the value of the land and render it unmarketable. Damages were awarded to seller from buyer in the sum of $1,000 general damages and $500 for attorney's fee necessarily incurred in clearing title to said real property, total damages $1,500.

ISSUES

In her appeal to this court buyer contends that: (1) The evidence does not support the judgment in favor of seller on the cause of action alleging slander of title; (2) Seller is not entitled to recover, by way of damages, the attorney's fees incurred in clearing her slandered title.

Does the Evidence Support Findings of Slander of Title?

Buyer claims that she rescinded the contract to purchase seller's property and that the document she recorded on October 24, 1956 was merely notice of this action on her part. This document alleged that '* * * certain representations made by Seller were not as Seller represented; that seller also attempted to sell said premises to other persons after taking a deposit from the undersigned,...