Gish v. Ferrea

CHIPMAN, P. J.

Action to enforce specific performance of an alleged agreement for the sale and purchase of certain real property situated in the city and county of San Francisco.

Defendants answered specifically denying the material allegations of the amended complaint and defendant Lefevre answered by cross-complaint alleging title to the said property and praying that the same be quieted against the claims of plaintiff. The court adjudged that defendant, Lefevre, is the owner of the property and plaintiff has no interest therein and gave judgment for defendants with costs.

There is in the record what purports to be a notice of motion to strike the cross-complaint from the files, on the ground that it “is immaterial, irrelevant and redundant.’’ It does not appear that any motion was made pursuant to the notice or at all, and the notice fixes no time for the making of such motion. However, we may dismiss the point made that the record fails to show what action the court took on the motion, for the reason that it forms no part of the judgment-roll and the appeal here is from the judgment upon the judgment-roll alone.

It is alleged in the complaint that defendant Ferrea, being then the owner of the property in question, in September, 1905, agreed to sell to plaintiff and plaintiff agreed to purchase the same for the sum of $300; that 'immediately thereafter plaintiff entered into possession of the premises and made valuable improvements thereon with the knowledge and consent of defendant, Ferrea. The usual averments follow of tender of the purchase price, demand for deed and refusal of Ferrea to accept the tender or make the deed. It is then averred that on February 9, 1906, “by mesne conveyances the said property was sold to one J. P. Lefevre; that said Lefevre purchased said property with a full knowledge of the

[55]

fact of the possession of the plaintiff, and the erection of improvements ’ ’ thereon by plaintiff. Tender to Lefevre is averred and refusal by him to execute a deed to plaintiff. It is also averred that in October, 1905, plaintiff entered into a contract with Thomas O’Donnell and wife to execute or cause to be executed a deed to them of the property and that they executed a mortgage to plaintiff on the said premises to secure the payment of a certain promissory note executed by them to plaintiff and that plaintiff is prevented from conveying the property to the O’Donnells because of her inability to obtain a deed from Ferrea or Lefevre.