Cathcart v. Security Title Insurance & Guarantee Co.

BARNARD, P. J.

This is an appeal from an order after judgment removing an arbitrator and appointing a substitute arbitrator.

The plaintiff owned a three-fourths interest in 280 acres of mountain land, the remaining interest being owned by the Redlands Security Company. In 1931, she gave the Redlands Security Company a note for $18,000, secured by a deed of trust on her interest in the property. These parties conveyed a portion of this property, including a strip 175 feet in width, to the defendant water district. The validity of this conveyance was contested in a prior action.

(Cathcart

v.

Gregory,

45 Cal.App.2d 179 [113 P.2d 894].)

While that action was pending these parties conveyed a right of way for road purposes over portions of this property to the county of San Bernardino. As the title to part of the property was then in litigation, these parties entered into a written agreement dated April 23, 1940, which will be re

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ferred to as “Exhibit E.” This agreement provided that the Redlands Security Company should compensate the plaintiff for any interest in the land conveyed for road purposes which she might be awarded in the pending litigation, that the amount of such compensation should be determined by a board of three arbitrators chosen in the usual manner, and that the amount as thus determined should be applied as a payment upon the $18,000 note.

After the judgment in the prior action became final the plaintiff brought this action in equity seeking to have the prior judgment declared null and void and asking, among other things, that any sale under the deed of trust be enjoined “pending the determination by a board of arbitrators of the compensation to which plaintiff is entitled by reason of the written agreement, ...” (Exhibit E.)

After a trial in this equitable action the court found in favor of the defendants and on January 14, 1943, entered a judgment in their favor. Among other things, this judgment provided that within fifteen days after notice of the entry thereof the plaintiff should appoint an arbitrator in accordance with the provisions of the agreement (Exhibit E) to act with one Frank L. Whitelock, who had been appointed an arbitrator by the Redlands Security Company and whose appointment was thereby confirmed; that within fifteen days thereafter these two arbitrators should appoint a third; that within thirty days thereafter the three arbitrators should determine and fix the value of the plaintiff’s interest in the land in question; that the sum so fixed should be applied in reduction of the amount due on the $18,000 note; and that thereupon any preliminary injunction should be dissolved and the trustee under the deed of trust might proceed with the sale of the property.