Dennis v. Overholtzer

VAN DYKE, P. J.

This is an appeal from an order granting a preliminary injunction. Plaintiff, Phyllis B. Dennis, filed an action asking the specific performance of an alleged contract whereunder Arthur E. and Orpha Overholtzer had agreed to sell to her certain real property. She prayed for damages in the alternative if specific performance could not be had. She alleged the purchase price of the property to have been $22,000, $1,000 down and the balance on delivery of deed conveying good title, subject only to leases to defendants John W. Bryson and Norman B. Livermore, Jr., as to part of the property and to defendant W. V. Dennis, Jr., as to the rest. She alleged that a title report disclosed a prior recorded lease affecting the property running to defendant A. R. Cornelius and that the lease contained an option whereunder Cornelius could purchase; that the Overholtzers claimed to have terminated that lease and that Cornelius had no real interest. She alleged performance by her of the purchase contract, a tender to the Overholtzers of the balance of the purchase price, and her continuing willingness to pay for the property upon obtaining a deed as agreed upon. She further alleged a

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refusal of the Overholtzers to perform the purchase agreement. The complaint also set forth that, having tendered performance and being entitled to a deed, plaintiff had demanded of the tenants that rentals be paid to her. Plaintiff alleged that actual controversies existed between herself and the several defendants and between the several defendants among themselves, and she asked a declaratory judgment determining all matters in controversy. W. Y. Dennis, Jr., answered, asserting, among other things, that he was a lessee and that conflicting demands had been made upon him for the rent. He asked that declaratory relief be accorded him in that respect. Bryson and Livermore interposed the same pleas. Cornelius appeared and cross-complained, setting up a claim adverse to all parties to possession under his recorded lease and asserting an unexpired option to purchase. Dennis, Jr., then cross-complained against the Overholtzers, alleging that he was under suit as their tenant by Cornelius, who sought to oust him with damages for his possession of the property. He sought adjudication of the rights of the parties in respect to the claims of Cornelius and, if ousted, damages from his lessors. The Overholtzers answered, denying they had agreed to sell to plaintiff and alleging they had made the contract she counted on with her husband to whom they had tendered a deed. They acknowledged the lease to Dennis, Jr., and to Bryson and Livermore. They denied the tenancy and option claimed by Cornelius. Plaintiff moved the court for and obtained an order impounding rents pending the outcome of the litigation. The Overholtzers, having made demands upon Dennis, Jr., for the payment of rent to them, served upon him a notice of unlawful detainer and a statement that they intended to institute an action to obtain possession of the property. Thereupon he applied to the court for an order restraining them from pressing their demands on him and from doing anything to interfere with his occupancy and possession of the property and from instituting actions against him pending the determination of the action. The court issued a temporary injunction whereby it restrained the Overholtzers during the pendency of the action and until its final determination or until the court should otherwise order, from commencing or maintaining any action or proceeding in unlawful detainer against Dennis, Jr., or for ejectment or eviction of Dennis, Jr., from the property held by him under the lease or for the recovery of possession of that property from him.