Title Guarantee & Trust Co. v. Stahler

PULLEN, P. J.

Plaintiff commenced this action against Sarah Stabler to recover the balance due under an agreement to buy certain real property. Subsequently an amended complaint was filed making Marion Merron a party by alleging she was the assignee of said agreement.

Defendants answered and filed a cross-complaint alleging misrepresentation and fraud, and made W. H. Bilyeu and wife cross-defendants, Bilyeu being the realtor who negotiated the transaction.

At the time of the filing of the complaint and amended complaint attachments were issued upon certain property of defendants. Judgment was entered in favor of plaintiff and cross-defendants and against Sarah Stabler, who has appealed therefrom.

The first point urged upon this appeal is that the court erred in refusing to vacate this attachment. In that appellants are correct. The vendor, under an executory contract for the sale of real property, having retained title as security for the purchase price, is not entitled to an attachment.

(Longmaid

v.

Coulter,

123 Cal. 208 [55 Pac. 791] ; 3 Cal. Jur. 419.)

No appeal, however, was taken from the order refusing to discharge the attachment and it cannot be reached under the present appeal. Furthermore as to Marion Merron, she recovered judgment, and as to her the attachment was automatically released, and as to Sarah Stabler, she repudiated in writing any claim to the property attached, and also by her cross-complaint repudiated said transaction upon the ground of fraud.

The second point urged by appellants is that no deed was tendered prior to the commencement of the action. The pleading in evidence seemed to indicate that a deed was tendered. However, appellants sought by their cross-complaint to recover upon the ground of fraud, and therefore no tender was necessary. As was said in

Teague Investment Co.

v.

Setchel,

44 Cal. App. 664 [186 Pac. 1046] : “Where the purchaser of real property repudiates the trans

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