Fredericksen v. McCosker

[115]

VAN DYKE, P. J.

This is an appeal by plaintiffs Frederieksen from a judgment in favor of defendants in an action in unlawful detainer filed on July

22,

1952, to recover possession of certain real property in Lake County.

Plaintiffs and appellants are the owners of said real property subject to a written contract, dated September 5, 1944, which will be referred to as the Hand contract, whereby appellants’ predecessors agreed to sell the property to James M. McCosker, Jr. and Helen MeCosker, his wife. Under the terms of this agreement, the purchasers made a down payment and agreed to pay the balance seven years later, that is, on September 5, 1951.

On March 4, 1949, James M. McCosker, Sr., and Alice Maude MeCosker, his wife, brought an action against the McCoskers, junior. A judgment was entered which awarded the McCoskers, senior, the sum of $9,341.69 and also declared in their favor a resulting trust in an undivided one-half of the interest of the McCoskers, junior, in said lands under the Hand contract. That judgment was recorded in Lake County records on August 28, 1951. On appeal in

McCosker

v.

McCosker,

122 Cal.App.2d 498 [265 P.2d 21] (January 11, 1954) this court affirmed said judgment. On September 27, 1951, the McCoskers, senior, purchased at sheriff’s sale, held in execution of said judgment, all the interests of the McCoskers, junior, in said real property. Certificate of sale was recorded on October 15, 1951. On October 2, 1951, after the sale, but before recordation of the certificate, the Fredericksens brought action Number 6311 in the Superior Court of Lake County against the McCoskers, junior, and two fictitious defendants, designated as John Doe and Richard Roe, to quiet title to this same real property.

Respondents here made an abortive attempt to become parties to that action. It is unnecessary to relate the history of that attempt. Appellants here were successful in excluding them and in their briefs properly assert respondents were never parties. On December 10, 1951, a judgment was entered which quieted the Fredericksens’ title against the McCoskers, junior, and which declared the judicial forfeiture of the Hand contract. Respondents here were and remained in possession of the subject property.