Wedderien v. Wood

CRAIG, J.

This is an action for specific performance of an alleged oral agreement to sell real property which the complaint states had been partly performed by the plaintiff. Judgment was rendered for the defendants, quieting their title to the property involved as against the plaintiff, adjudging that defendants have possession and the value of the use and occupation of the premises. The defendants Alonzo W. Wood and Ellie Wood, answering, claim to be the owners of the property in question and asked to have their title to said property quieted as against the plaintiff. The plaintiff moved to strike the allegations of this character from the answer, which motion Was denied. One of the grounds upon which appellant

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relies is that this motion should have been granted. To sustain this contention he relies upon section 437 of the Code of Civil Procedure and asserts that the paragraphs of the answer sought to be stricken out are neither a general nor special denial of the material allegations of the complaint, nor a statement of new matter constituting a defense or counterclaim.

As we have said, the suit is one for specific performance of a contract for the sale of real property. The answer admits that the plaintiff has been in possession of the property; alleges facts which, if true, establish that the possession and detention thereof was unlawful, and asks affirmative relief for the recovery of rent for the use and occupancy of the premises; and also that the title of the defendants Alonzo W. Wood and Ellie Wood be quieted. We think these matters were appropriate to be litigated in the instant action and to be pleaded by way of answer. In so far as the character of the possession of the property by plaintiff was concerned the allegations of unlawful detainer constituted a part of the defense.

The claim for rent clearly arose out of the same transaction as that which is the basis of the plaintiff’s alleged cause of action and hence was a proper matter to be pleaded by way of the answer. (Secs. 437, 438, Code Civ. Proc.) For the same reason it was permissible to seek to quiet the title of the defendants as against the plaintiff’s claim to ownership of the property in question. The mere filing of this action alleging the existence of a contract to convey was sufficient to render the defendants’ title unmarketable Had the plaintiff seen fit to have dismissed, the defendants could have secured relief only through an action to quiet title. The cloud which rested upon defendants’ title grew out of the transaction which formed the subject matter of the instant suit. Defendants might have instituted a separate proceeding to quiet title, but they were not required to do so.