Babb v. Weemer

225 Cal.App.2d 546 (1964)

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Nature of the Case

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Facts

Weemer (D) owned property, and on July 5, 1956, executed a promissory note and deed of trust securing the payment thereof for the sum of $4,500. On March 17, 1958, D conveyed the property by grant deed to Rosette. Rosettes executed their promissory deed to D for $3,250 and imposed a second deed of trust upon the property. The second deed was a purchase money deed. On June 8, 1960, Rosettes sold to Babb(P) for $10,100 as per the memo on page 1031 Rabin 4th. The property was conveyed by grant deed subject to encumbrances and easements of record. P had found the first trust deed of record and the subsequent encumbrance. P's search also indicated that the grant deed by which D sold the property Rosettes contained no specific reference to the first trust deed and therefore carried with it an implied covenant that the property was free from any encumbrance placed upon it by D as seller. P asserted in suit that the implied covenant runs with the land and inures to the benefit of P that this covenant was breached, and that P as subsequent purchaser has a cause of action for damages against D for the amount due on the first deed of trust. P relied on section 113 of the Civil Code. P made this contention even though he had actual as well as constructive knowledge of the existence of the first deed at the time of purchase and even though the deed conveyed subject to encumbrances and easements of record. The trial court entered judgment for D and P appealed.