Sweet v. Richvale Land Co.

BURNETT, J.

The action is in ejectment. The basis of the controversy is an executory contract of sale, the parties thereto being plaintiff and one E. A. Rhinesmith, the latter’s interest therein having passed by regular assignment to one John S. Hastings. The complaint alleges ownership and the

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right of possession of the property in plaintiff; that, on the first day of October, 1912, said Rhinesmith and plaintiff entered into a contract of sale and purchase of said land (setting out said contract); “that under said contract, said defendant took possession of said premises; that said contract provides that in event of a failure to comply with the terms of said contract, defendants forfeit all right to said property, and said plaintiff is released from all obligation in law or equity to convey said property.” Then follow allegations of the various assignments of Rhinesmith’s interest terminating in said defendant John S. Hastings, “who is now in possession of said premises.” It further appears that a payment of six hundred dollars, due under said contract on October 1, 1914, together with interest on deferred payments, was not made; that demand was made for said payment or possession of the premises, but that both were refused and defendant “unlawfully withholds possession of said premises from plaintiff; that plaintiff has complied and is ready and willing to comply with all the terms of said contract. ’ ’

That a cause of action in ejectment is thus stated is entirely clear, and the proposition needs no elaboration. It is sufficient to refer to

Haile

v.

Smith,

128 Cal. 415, [60 Pac. 1032];

Gervaise

v.

Brookins,

156 Cal. 103, [103 Pac. 329];

Empire Investment Co.

v.

Mort,

171 Cal. 336, [153 Pac. 236], The general demurrer of defendants was, therefore, properly overruled.