Wilkins v. Oken

FOURT, J.

This is an appeal from an order granting a preliminary injunction. The effect of the injunction is that, pending the outcome of the present action for rescission of a sale of real property, the parties are restrained from taking possession of those portions of an eminent domain award to which they have been held to be entitled in an eminent domain proceeding commenced by the El Monte School District, in which proceeding the judgment is not yet final.

Upon the ultimate determination of the rescission action, the amount available under the final judgment in the eminent domain award will be distributed to the sellers Harry Oken and the plaintiffs; or, in the alternative, to the purchaser Melvina Brenner Oken and the sellers Harry Oken and the plaintiffs as owners of the second deed of trust on the property.

A résumé of the facts is as follows: Title to the parcel of real property known as Hicks Camp and consisting of approximately 30 acres, was vested in plaintiffs and Harry Oken as tenants in common, each of them owning an undivided one-third interest. The interest of Harry Oken was held in the name of defendant Frederick S. Oken, as trustee for Harry Oken. Frederick S. Oken is the adult son of Harry Oken. Upon the real property were located a partially completed water system and numerous small and substandard dwellings, which were owned by the occupants thereof, who rented the land.

A grant deed executed January 23, 1956, by plaintiffs and

[605]

Frederick S. Oken conveyed title to Melvina Brenner. Harry Oken and Melvina Brenner were married February 1, 1956, and the aforesaid grant deed was recorded on February 1, 1956. The sale price was $121,000. The property was subject to an existing first trust deed with an unpaid balance of approximately $66,000 in favor of defendants P. H. Young-blood and Ellen W. Youngblood; and sellers took back a second trust deed in the amount of $32,500.

Previously, on December 15, 1954, the El Monte School Board District had commenced the eminent domain proceeding to appropriate about 10 acres of said Hicks Camp, in which a verdict was returned for the real property, improvements and dwellings taken in the amount of $95,149.90, and for severance damage to the remaining property in the amount of $17,750. In a second phase of the eminent domain proceeding to apportion the award, judgment was entered that $30,764.85 be paid to plaintiffs and to defendant Frederick Oken on their promissory note, thereby removing the lien of the second trust deed; that $45,000 be paid to defendants P. H. Youngblood and Ellen W. Youngblood on the first trust deed; that $1,550 be paid to certain of the tenants for their dwellings; and that the balance of $35,585.05 be paid to Melvina Brenner Oken as owner.