made and title thereto shall be deemed not to have been passed and

said intended transfer shall be deemed to be incomplete and not to be valid or effective for any purpose. #(28) But it is expressly provided that nothing in these provisions shall prevent the legal owner from assigning his interest in such vehicle to another without the consent of and without affecting the interest of the holder of the certificate of registration. In such case, upon filing the certificate of ownership indorsed by the legal owner and the transferee with the division, the name of the new legal owner is entered upon the records of the division and a new certificate of ownership issued, the regis(29) tered owner being duly notified by mail. The language of the provision relating to the passage of title could not be more emphatically stated. Furthermore, the certificate of ownership is evidence of the legislative intent when it assumes the habiliments of a document of title and states upon its face that "This certificate is evidence of legal ownership of the vehicle it describes - -, It is submitted that unless the assignee of a conditional vendor's interest performs the acts required by the language of the statute covering that situation and a new certificate of ownership is issued to him by the division, the legal title to the property does not pass to such transferee for any purpose.

(28) Cal. Stats. 1923, p. 525.

(29) Cal. Stats. 1923, pp. 524-6.

VENDOR AND PURCHASER: TIME OF THE ESSENCE: WHAT CONDUCT ON THE PART
OF A VENDOR AMOUNTS TO A WAIVER OF A PROVISION MAKING TIME OF THE
ESSENCE OF THE CONTRACT
---- What acts on the part of a vendor

under an installment contract for the sale of real property will constitute a course of conduct from which can be drawn the inference that

the vendor has waived a provision in the contract making time of the essence? In California the rule is settled that where, in such a contract, the vendee defaults, the vendor is entitled to retain the pay(1) ments made to him under the contract. But the courts have sought a means of alleviating this harsh rule of forfeiture, and, as a result, there has sprung up a line of cases represented by Boone v. Templeman which preclude the vendor's right to insist upon strict performance of the terms of the agreement where his conduct shows an intention not to

(2)

(1) Glock v. Howard & Wilson Colony Co. (1898) 123 Cal.1, 55 Pac. 713, 69 Am.St. Rep.17, 45 L.R.A.199; Odd Fellows' Savings Bank v.Brander (1899) 124 Cal.255,56 Pac.1109; Oursler v.Thatcher (1908) 152 Cal. 739,93 Pac.1007; Skookum Oil Co. v. Thomas (1912) 162 Cal.539,123 Fac. 363; Smith v. Post(1914)167 Cal. 69,138 Pac. 705; Cross v. Mayo(1914) 167 Cal.594,140 Pac.283; Schwerin Estate Realty Co.v.Slye(1916)173 Cal. 170,159 Pac.420; Heden v. Point Reyes Land Co. (1921)185 Cal.121, 196 Pac.44; Tomboy Gold etc.Co. v. Marks (1921)185 Cal. 336,197 Pac. 94; Fresno Irrig.Farms Co. v. Campis (1918)39 Cal.App.184,178 Pac. 300,37 Cal.App. Dec.22; 8 California Law Review, 62; 11 California Law Review, 286; Brown v. Chowchilla Land Co. (1922)39 Cal.App. Dec. 133, 59 Cal.App. 164,210 Pac.424.

(2) (1910)158 Cal. 290,110 Pac. 947,139 Am.St.Rep. 126.

rely upon the condition precedent. (3)

The effect of these decisions is that, although provisions making time of the essence are strictly enforced in California, practically the result is much the same as in jurisdictions which take the view that time cannot be made strictly of the essence. But the difficulty with this state of the law is that there must always be cases where it is doubtful whether or no the vendor has done enough to come within the contemplation of the "waiver"

cases.

(4)

In the case of Clifford v. Fleshman etc. the plaintiffs and defendant's grantor entered into an installment contract for the sale and purchase of real property. It was specifically provided in the contract that time was to be of the essence and that "in the event of a failure on the part of the buyer to keep or perform any of the terms,

(3) Stevinson v. Joy(1912)164 Cal.279,285,128 Pac.751; Myers v. Williams (1916)173 Cal.301,159 Pac.982; Butte Creek Co.v. Olney(1916)173 Cal.697,708,161 Pac.260; Hermosa Beach Land and Water Co.v.Law Credit Co.(1917)175 Cal.493,495,166 Pac.22; Karl v.Andrews (1919)29 Cal.App. Dec.462,42 Cal.App.513,183 Pac.838; Lemle v. Barry(1919)181 Cal.1,183 Pac.150; 181 Cal.5,183 Pac.148; Newell v.E.B.& A.L.Stone Co.(1919) 181 Cal.388,184 Pac.659,9 A.L.R.993; Hoppin v.Munsey (1921)185 Cal. 678,688,198 Pac.398; Kerr v.Reed (1921)187 Cal.409,202 Pac.142; 1 California Law Review, 300; 8 California Law Review, 62; 11 California Law Review,286; and see Brown v.Chowchilla Land Co., supra, n.1,where the parties agreed to waive the effect of conduct which would otherwise amount to a waver of the forfeiture.

(4) (February 23, 1924)43 Cal.App.Dec.485.