WALTER J. BECKER, Appellant, v. GRACE C. BECKER, Respondent, 36 Cal. 2d 324

CARTER, J. On May 12, 1937, an interlocutory decree of divorce was granted defendant cross-complainant wife on the ground of extreme cruelty; the final judgment was entered June 11, 1938.

The interlocutory decree of divorce provided in the fifth paragraph as follows: “That within two' years from the date of this interlocutory decree of divorce, cross-defendant (plaintiff) shall pay to cross-complainant, the sum of Six Hundred Twenty-five and 00/100 Dollars ($625.00), in cash, said sum representing one-half (½) the estimated value of said two and one-half (2½) acres of land community property of the parties hereto; that on the payment by cross-defendant of said sum of $625.00, cross-complainant (defendant) will execute a good and sufficient instrument of conveyance to cross-defendant, or to such person or persons as he may direct to all her right, title and interest in and to said two and one-half (2%) acres of land; that until such conveyance is made, cross-defendant shall pay all taxes that may be or have been assessed or levied against said real estate.” (Emphasis added.) The final decree adopted the provisions of the interlocutory decree.

Neither of the parties appealed nor made any attempt to comply with or enforce the terms of the judgment until July 7, 1948 (except as will appear), when cross-defendant (plaintiff) made a motion in the same (divorce) action “to direct the defendant to execute a deed and to satisfy money judgment.” Plaintiff alleged that on May 26th, 1948, he had tendered the sum of $625 with interest to the defendant who refused to accept it and that he was now ready, able and willing to pay that amount, plus interest, into court.

In his affidavit he states that he had been unable to pay until that time; that he has expended approximately $1,000 since the interlocutory decree in filling in, and levelling the property. In the affidavit of the attorney for the defendant, it is alleged that plaintiff’s failure to pay the money within the two-year period had the effect of leaving the ownership of the property in the parties as tenants in common. It appears from the affidavit of a real estate broker that the plaintiff now has a buyer for the property who is willing to pay $24,750.

The order appealed from provided that “It Is Hereby Ordered, Adjudged and Decreed that plaintiff is entitled to obtain title amd [sic] sell the real property hereinafter described when he agrees to pay defendant one-half the proceeds of the sale after deducting the actual expenses of the sale, as well as the amount of taxes and improvements paid and expended by the plaintiff and that transaction should be handled through an escrow. “It Is Further Ordered, Adjudged and Decreed that the said motion of plaintiff to direct the defendant to execute a deed and to satisfy money judgment is granted conditionally, the condition being his acceptance of the foregoing procedure. ’’ [Emphasis added.] Plaintiff appeals, contending that the trial court was without jurisdiction to change the terms of the property settlement as set forth in the interlocutory decree which was a conclusive adjudication of the property rights of the parties upon the expiration of the time for appeal and for relief pursuant to

section 473, Code of Civil Procedure. Plaintiff maintains that when a judgment has become final, the judgment debtor has a right under

section 675 of the Code of Civil Procedure, on motion to order the judgment satisfied of record where it has been paid. He concedes that this judgment has not actually been paid, but contends that a tender was made which worked a discharge of the lien given as collateral therefor, and that “The tender having been made, it is equivalent to the satisfaction of the judgment and therefore the motion is proper.” (As will hereinafter appear, this

section of the Code of Civil Procedure has no application to the facts before us.) There are two questions presented by this appeal:

(1) The

interpretation of the two-year limitation in the interlocutory decree; and (2) the procedure to be followed to enforce the property rights of the parties. This court has said recently (Taylor v. George, 34 Cal.2d 552, 557 [212 P.2d 505]) that “ ‘An interlocutory judgment of divorce is, therefore, so far as it determines the rights of the parties, a contract between them’ ” (quoting from London G. & A. Co. v. Industrial Acc. Com., 181 Cal. 460, 465 [184 P. 864]). (See, also, Jones v. Union Oil Co., 218 Cal. 775 [25 P.2d 5]; Miller v. Murphy, 186 Cal. 344 [199 P. 525]; Weaver v. San Francisco, 146 Cal. 728 [81 P. 119].) The

interpretation of such a decree is a question of law. (Union Oil Co. v. Union Sugar Co., 31 Cal.2d 300 [188 P.2d 470]; Western Coal & Mining Co. v.

Jones, 27 Cal.2d 819 [167 P.2d 719, 164 A.L.R. 685]; Estate of Platt, 21 Cal.2d 343 [131 P.2d 825]; Estate of Pearson, 90 Cal.App.2d 436 [203 P.2d 52]; Estate of Norris, 78 Cal.App.2d 152 [177 P.2d 299].) If we consider the interlocutory decree as a contract, it would appear that by its terms the parties obtained mutual rights and were under mutual obligations—one to pay a certain sum in return for which the other was to convey a certain one-half interest in real property. These promises were mutually concurrent and were, by the terms of the decree, to be performed within two years from the date of the decree.

The terms of the decree should have been complied with during the two-year period, but were not. Likening it to a contract in which we assume that time was not of the essence, performance should have been within a reasonable time thereafter.

Section 276 of the Restatement of Contracts provides that “In determining the materiality of delay in performance, the following rules are applicable: (

d) In contracts for the sale or purchase of land delay of one party must be greater in order to discharge the duty of the other than in mercantile contracts, (

e) In a suit for specific performance of a contract for the sale or purchase of land, considerable delay in tendering performance does not preclude enforcement of the contract where the delay can be compensated for by interest on the purchase money or otherwise, unless (

i) the contract expressly states that performance at or within a given time is essential, or (ii) the nature of the contract, in view of the accompanying circumstances, is such that enforcement will work injustice.”

Section 1492 of the Civil Code is substantially the same as subdivision e(

i) of the Restatement. That

section provides that “Where delay in performance is capable of exact and entire compensation, and time has not been expressly declared to be of the essence of the obligation, an offer of performance, accompanied with an offer of such compensation, may be made at any time after it is due, but without prejudice to any rights acquired by the creditor, or by any other person, in the meantime.” By his motion, plaintiff is, in effect, seeking specific performance of a contract which should have been performed within a reasonable time after the expiration of the two-year limitation. It would seem that, as a matter of law, it can be said that a nine-year delay is not a reasonable time.

Section 3392 of the Civil Code provides that "Specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party, except where his failure to perform is only partial, and either entirely immaterial, or capable of being fully compensated, in which case specific performance may be compelled, upon full compensation being made for the default.” Even where time is not of the essence, courts will not allow specific performance after delay in tender, if enforcement will work injustice, or where delay is inexcusable. (Cockrill v.

Boas, 213 Cal. 490 [2 P.2d 774]; Mathews v. Davis, 102 Cal. 202 [36 P. 358]; Boulenger v. Morison, 88 Cal.App. 664 [264 P. 256].) It would seem that if plaintiff had been able, as he was, to expend $1,000 on improving the property, his plea of incap acity to comply with the decree is not too meritorious. And it would also appear that to enforce the original provisions as to payment will work a great injustice on defendant.

It appears that the decree gave the parties a two-year period and a reasonable time thereafter to comply with its terms and that when that time expired they would each hold an undivided one-half interest in the property as tenants in common.

In other words, the result is the same as it would be had no final disposition of the community property been made in either the interlocutory or final divorce decrees. (5 Cal.Jur. 360.) This court has held many times that a divorce decree which adjudicates the property rights of the parties is not subject to modification regardless of whether or not it is based on agreement of the parties. (Codorniz v. Codorniz, 34 Cal.2d 811 [215 P.2d 32]; Leupe v. Leupe, 21 Cal.2d 145 [130 P.2d 697]; Adams v. Adams, 29 Cal.2d 621 [177 P.2d 265]; Dupont v. Dupont, 4 Cal.2d 227 [48 P.2d 677]; Ettlinger v.

Ettlinger, 3 Cal.2d 172 [44 P.2d 540].) It would appear, as a result, that had this motion been made at the end of the two-year period, or within a reasonable time thereafter, the trial court should have granted the motion by making an order compelling defendant to convey her interest in the property upon payment of $625 as provided in the interlocutory decree. Such a motion was not made, however, and the provisions of the interlocutory decree purporting to make a division of the community property of the parties is now of no force and effect.

The result is the same as if no disposition of such community property had been made, and the parties now hold title to the property as tenants in common. (Buller v. Buller, 62 Cal.App.2d 694 [145 P.2d 653]; Lorraine v. Lorraine, 8 Cal.App.2d 687 [48 P.2d 48]; Fieger v. Fieger, 28 Cal.App.2d 736 [83 P.2d 526].) It was, therefore, improper for the trial court to make an order in the same (divorce) action modifying the terms of the property settlement contained in the interlocutory decree and which was incorporated by reference in the final decree of divorce.

When the community interests are not determined in the interlocutory or final decree, the spouses must prove, in a separate action, the property to which they are entitled. (Green v. Green, 66 Cal.App.2d 50, 57 [151 P.2d 679]; Lorraine v. Lorraine, supra; Brown v. Brown, 170 Cal. 1 [147 P. 1168].) For the foregoing reasons the order appealed from is reversed. Gibson, C. J., and Shenk, J., concurred.