Chapman v. Gillett

THOMPSON (R. L.), J.

This is an appeal in a suit to cancel a trust deed and quiet title to certain Los Angeles County lots, from a judgment of dismissal of the action after an objection to the introduction of evidence on the part of the plaintiff had been sustained on the ground that the complaint fails to state facts sufficient to constitute a cause of action.

The supplemental complaint alleges the defendant Bryant is the owner of parts of lots 1, 2 and 3 of Tract Number 1103 of the city of Los Angeles; that prior to February 1, 1927, Bryant conveyed the property to E. A. Jaquins, who in turn conveyed the lots to the plaintiff “subject to a first trust deed of record in the sum of $3,000.00, and also subject to a second trust deed of $5,000.00 filed concurrently therewith”. It is alleged this last deed of conveyance was recorded February 25, 1927; that on January 18, 1927, Jaquins executed and delivered to the defendant Pioneer Title Insurance & Trust Company as trustee, with the usual power of sale, a trust deed upon the same property to secure the payment to Charles L. Gillett and A. R. Underwood of the sum of $5,000 on or before October 1, 1927; that on the last-mentioned date Gillett and Underwood executed an agreement to sell 200 acres of land in Imperial County to Jaquins for $25,000 to be paid in specified installments upon terms and conditions therein

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stated with, eight per cent interest on all deferred payments; that to secure the payment of the first installment of $5,000 due October 1, 1927, on this contract to purchase the Imperial County land, Jaquins agreed to convey the Los Angeles County lots in trust to the Pioneer Title Insurance Company, authorizing the sale thereof for default of this payment; that as a part of the last-mentioned contract and transaction the parties thereto further agreed that Jaquins would plant and cultivate twenty acres of said Imperial County farm with grapefruit on or before June 1, 1927; that for default in any of the provisions or terms of either of the last-mentioned two contracts, Jaquins would forfeit all rights thereunder and all moneys paid on account of the purchase price of said land. The complaint further alleges that Jaquins took immediate possession of the Imperial County land, and that “prior to June 1st, 1927, plaintiff decided he would be unable to carry out the contracts . . . [last mentioned], and thereupon rescinded and abandoned the same, . . . and defendants Gillett and Underwood consented thereto . . . and took possession of said Imperial County land and have ever since remained in possession thereof”. It was further alleged that on November 22, 1927, the defendants Gillett and Underwood served legal notice of the default of Jaquins “of the conditions of said trust deed”, and that the trustee thereof, the Pioneer Title & Trust Company threatens to sell said Los Angeles County lots for default of the terms of the trust deed unless it is restrained from doing so; that the defendant Carombes is renting said Los Angeles County lots and is paying Bryant $35 a month as rental therefor, which rental belongs to plaintiff, and the payment of which Bryant has refused and upon the contrary claims some right and title to said Los Angeles lots. Finally the supplemental complaint alleges that since the commencement of this action the trustee sold and conveyed the Los Angeles lots pursuant to the terms of the trust deed to the defendant Charles L. Gillett. The plaintiff then prays that the trust deed be canceled; that the defendants be restrained from asserting any title to said lots, and that title thereto be quieted in him.