Johnston v. Mendenhall

TYLER, P. J.

This action is one in ejectment brought to recover possession of certain land situated in San Diego County and known as the Riverview Ranch. Plaintiffs, who are husband and wife, claim to be the owners in common of the property and entitled to its possession. Defendants’ pleadings consist of a second amended answer containing seven different pleas, which include a denial of ownership as alleged, and certain allegations which, it is claimed, establish equitable defenses and counterclaims, and an amended cross-complaint containing eleven allegations which substantially set up all the alleged equitable defenses recited in the various defenses in the amended answer. Demurrers were sustained to the amended cross-complaint and to all of the defenses set up in the amended answer except the first defense thereof. This first defense denied ownership in plaintiffs as exclusive tenants in common and alleged ownership and right to possession in both plaintiffs and defendants as partners. It further denied the allegations of the complaint as to the wrongful withholding of possession by defendants, and alleged rightful possession in them at the time of the commencement of the action, and it also denied, as charged in the complaint, that the value of the use and occupation of the premises was of the sum of $300 a month or any other sum. The case went to trial upon the complaint and the first defense contained in the amended answer. Judgment went for plaintiffs. Defendants appeal on the judgment-roll alone, and they contend that the trial court erred in sustaining demurrers to various allegations of their amended answer and to their amended cross-complaint, which pleadings, they assert, contain and fully set forth complete legal and equitable defenses to the action and upon which they have been denied a trial. These defenses, it is claimed, appear in the seventh defense of the answer and are again reiterated in the second cause of action alleged in the cross-complaint.

The seventh defense of the amended answer alleges the making of a contract upon February 26, 1919, with a recital of its terms and the entry of the defendants thereunder,

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and their fulfillment, so far as not prevented by plaintiffs, of the contract. It then alleges the failure of plaintiffs to perform, and the giving of notice to them by defendants of certain losses which would necessarily follow from a continuation of nonperformance. It also alleges a modification of the contract in relation to plaintiffs’ duty, the continued failure of plaintiffs to perform the agreement as modified, and the consequent inability of defendants to make payments under the contract, with notice of such fact to plaintiffs. A new agreement of settlement is then claimed to have been made whereby defendants were to have and receive the sum of $15,000, which sum, it is recited, they had expended on the land, and it is further alleged that under this new agreement defendants were to remain in possession of the property for the purpose of farming and caring for the same for the mutual benefit of plaintiffs and defendants until a sale thereof could be consummated, plaintiffs agreeing in the meantime to use their best efforts to sell the land and out of the proceeds to pay defendants the said sum with interest thereon from the date of the settlement agreement, they being unable to purchase defendants’ interests. Defendants then allege that pursuant to this settlement agreement they remained on the land and carried out their contract until prevented from so doing by an attachment levied by plaintiffs in another action upon the farming tools, the nature of which action the record does not disclose. Defendants then plead their willingness and ability to carry out the agreement except as prevented by plaintiffs, and claim that the plaintiffs have waived their right to declare any of the agreements forfeited. The pleading then concludes with a prayer that plaintiffs take nothing and that it be adjudged that the said agreements have not been forfeited by defendants, but that they are still in full force and effect, and general relief is asked for. The second cause of action of the amended cross-complaint reiterates the matters alleged in the seventh defense of the amended answer, and this pleading concludes with a prayer that the agreement be revised to show the true contract existing between the plaintiffs and defendants and that the contract as revised be specifically enforced, and damages in the sum of $30,000 and general relief are praved for. Attached to and as an exhibit to defendants’ amended