Strozier v. Williams

KINCAID, J. pro tern.

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Appeal is taken from a judgment of dismissal following the sustaining of a demurrer to plaintiff’s fourth amended complaint without leave to amend. Defendants had interposed both general and special demurrers to the original and to each of the amended complaints of plaintiff. Upon the overruling of the general demurrer and the sustaining of the special demurrer to the third amended complaint plaintiff was given leave to amend. He thereupon filed a fourth amended complaint identical with his third amended complaint. In response to defendants’ demurrer plaintiff’s attorney stated in open court that he could allege no additional ultimate facts. The sustaining of the demurrer without leave to amend and the judgment of dismissal followed.

Plaintiff’s fourth amended complaint is set forth as one cause of action and is entitled “Por Declaratory Relief and Damages.” Plaintiff averred therein that until August 12, 1958, and for a period of 10 years before, he was the owner and was occupying certain real property in the city of Los Angeles; that a certain mortgage company had instituted

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proceedings to foreclose a second trust deed on said property and that plaintiff had filed a declaratory relief action against said encumbrance holder. About August 8, 1958, plaintiff’s attorney entered into an agreement with the attorneys for said encumbrance holder that the foreclosure sale might take place and that plaintiff would bid at said sale $3,500, being the full amount of said encumbrance, but would only pay the sum of $1,400 and would give a dismissal of certain actions previously filed by plaintiff. Defendant Williams represented to plaintiff that defendant Deckard would purchase said real property for $8,000, would pay plaintiff the sum of $2,800 in cash and assume the first trust deed of $5,200; that said $2,800 was in the bank and that it would be paid to plaintiff as soon as the deed was ready to be delivered. Plaintiff, relying on the promise of Williams, authorized the trustee in foreclosure to make the deed to Deckard but instructed him to deliver the deed to plaintiff’s attorney and that the deed would be turned over to defendants only upon payment of said $2,800. On August 12, 1958, Williams went to the office of the trustee in foreclosure and falsely represented to him that he was sent by plaintiff’s attorney; said trustee, believing that the deed would be delivered to plaintiff, gave the deed to Williams; the latter thereupon proceeded to file said deed of record and to transfer the first trust deed to Deckard without performing his part of the agreement of paying the monies due thereunder. Defendants claim an estate or an interest in said real property adverse to the plaintiff by reason of the trustee’s deed. Defendants threatened and intimidated plaintiff and by reason thereof, plaintiff moved from said premises. That Deckard obtained a judgment in small claims court against plaintiff and recorded an abstract thereof which is a cloud on plaintiff’s property.