Cowan v. Security-First National Bank

SPENCE, J.

Plaintiff sought to recover judgment against defendant Eva P. Cowan, his former wife, and defendant Security-First National Bank of Los Angeles, for the sum of $10,000, and to have said sum declared a lien upon certain real property and to have said lien foreclosed. Demurrers were sustained to the original complaint and thereafter to the first amended complaint with leave to amend. Plaintiff then filed his second amended complaint and defendants’ demurrers thereto were sustained without leave to amend. Judgment of dismissal was thereupon entered and from said judgment plaintiff appeals.

While the second amended complaint contained three counts, all of said counts were in substance the same and were

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based upon the property settlement agreement entered into between plaintiff and defendant Eva P. Cowan on November 28, 1927. The parties thereby divided certain real and personal property and made provision for the custody and support of their minor child. One of the parcels of real property which the wife obtained by the settlement and to which the wife'received a quitclaim deed at the time of the execution of the agreement was the so-called “home place”. One of the provisions of the agreement read as follows: “It is also agreed by and between the parties hereto that when the wife sells the home place situate at 1421 North Central, in the city of Glendale, Los Angeles County, California, that she will pay to the said husband the sum of Ten Thousand ($10,-000.00) dollars out of the money received from the sale of said property.” It was not expressly agreed that the wife should sell forthwith, or within a reasonable time or at any time, and plaintiff did not allege and does not now claim that such was the agreement of the parties.

The property settlement agreement was thereafter recorded. On February 15, 1929, defendant Eva P. Cowan mortgaged said home place to defendant Security-First National Bank to secure her promissory note in the sum of $12,000 and the mortgage was recorded on March 22, 1929. Plaintiff alleged on information and belief in his second amended complaint that said mortgage was given to secure a prior indebtedness. It was further alleged that in November, 1932, said bank commenced an action to foreclose said mortgage without making plaintiff a party to said action and that in January, 1933, the property was sold to said bank on the foreclosure sale following the judgment of foreclosure in said action. Upon the allegation of the foregoing facts, together with allegations of the demand upon and refusal by defendants to pay plaintiff the sum of $10,000, plaintiff brought this action on September 16, 1933, and sought judgment as above indicated. The demurrers of both defendants attacked the sufficiency of the complaint to state a cause of action and also set up the statute of limitations.