Redhead v. Payne

LENNON, P. J.

This is an appeal by defendant from a judgment directing 'the sale of land described in the complaint. The defendant demurred to the complaint; the demurrer was overruled; defendant declined to answer and the judgment went by default. Defendant contends that no cause of action is stated in the complaint. The complaint sets forth that between November, 1912, and January, 1915, plaintiff and defendant were the owners, as tenants in common, of certain lands in Biverside County; that this property was operated at a loss; that the defendant was financially,unable to pay his share of operating said property and plaintiff was obliged to advance and did advance over five thousand two hundred dollars more than defendant in its management and for its protection; that on January 14, 1915, defendant being unable to meet his share of the costs and expenses of the future operation of said Biverside property, the same was traded for certain land in Fresno County, which is the land involved in this action. In order to complete such trade, plaintiff was

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compelled to pay five thousand dollars bonus and $269 as costs and expenses; that before making such trade it was verbally agreed that the title to the Fresno County land should be taken in plaintiff’s name, and that defendant’s entire interest should be one-half of what might be derived from a sale thereof, in excess of the mortgage of six thousand dollars thereon, after deducting the balance due plaintiff of $10,470.84'; that defendant refused to pay any part of the taxes or of the interest due upon the mortgage on the Fresno land and that the plaintiff was forced to pay the same; that plaintiff does not know whether he is ¡the owner of said Fresno County land or whether he holds the title thereto as trustee for defendant and himself, subject to the lien of said mortgage and a second lien for the amount due him as aforesaid, and he, therefore, submits the question to the court; plaintiff offers to do anything equitable in the premises and prays for a decree adjudging and determining the rights and interests of plaintiff and defendant in the said land, and that the same be sold under an order of the court and that the amount to which plaintiff may be entitled may be declared a lien on said land, subject only to the lien of the mortgage aforesaid, and that the proceeds of such sale be applied, first, to the costs and expenses of such sale and, second, to pay the amount found due to plaintiff and the balance divided between plaintiff and defendant. ,