Southcott v. Pioneer Title Co.

SHEPARD, Acting P. J.

This is an appeal by plaintiffs from a judgment of dismissal entered after plaintiffs’ refusal to amend following demurrer sustained to complaint.

The Pleading

In substantial essence the complaint alleges: defendant’s corporate being; plaintiffs’ ownership of an undivided one-half interest in certain described land; acquisition of said title from F. H. Southcott, Sr., father of plaintiff F. H. Southcott, Jr., by deed dated December 20, 1948, and recorded August 29, 1949; execution of a contract dated February 7, 1953, recorded February 15, 1953, by which said father and wife agreed not to convey the remaining half-interest in said land to anyone other than plaintiff son and that the said son would be sole heir thereto; that October 20, 1955, one Louis R. Kern negotiated purchase of the land from said father and opened an escrow with defendant; that defendant prepared all escrow instructions, deeds and other documents used in opening and closing of said escrow; that defendant ignored the deed of December 20, 1948, and the agreement of February 7, 1953; that the escrow was closed and said Kern took exclusive possession of all said land with knowledge of plaintiffs’ title and without the knowledge and consent of plaintiffs; that plaintiffs on December 29, 1955, commenced an action entitled,

Fleetwood H. Southcott, Jr., et al.

v.

F. H. Southcott, etc., et al.

to determine plaintiffs’ interest in said land, in which action judgment was on July 17, 1957, rendered that plaintiffs own an undivided one-half interest in said land; that the value of the one-half interest is $40,000; that plaintiffs, on March 7, 1958, commenced an action in partition against said father, Louis R. Kern, et al., and judgment was entered June 23, 1959, determining the rights of the parties thereto to said land; that by reason of defendant’s acts plaintiffs cannot acquire by succession the one-half interest of said father to plaintiffs’ damage in the sum of $40,000; that by reason of defendant’s acts, plaintiffs were required to and did file the actions of December 29, 1955, and March 7, 1958, to their expense and damage in the sum of $3,000 Plaintiffs prayed for general damage of $40,000 and special damage of $3,000.

Defendant demurred on the grounds that no cause of action

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