Baker v. Carstenbrook

PLUMMER, J.

Action for fraud and deceit in the sale of real estate. Plaintiff recovered judgment and defendant appeals.

The record shows that on or about the twenty-eighth day of April, 1922, the appellant purported to convey and transfer to the plaintiff by a grant, bargain, and sale deed a certain tract of land situate, lying, and being in the city of Marysville, county of Yuba, state of California, described as follows: The east one-half (E. %) of block number fourteen (14), of range letter “K” of the said city of Marysville, as the lots, blocks, and ranges are laid down, numbered and designated upon the official recorded map of the said city of Marysville; that the appellant had at that time a certain tract of land inclosed by a fence which the defendant falsely represented to the plaintiff was the land described in the deed, the complaint further alleging that at the time of making such statements and representations the defendant knew the same to be false and that the false statements were made for the purpose of inducing the plaintiff to consummate the deal and enter into the possession of the premises inclosed by the fence hereinbefore referred to; that the defendant at that date was in possession of the premises inclosed by the fence. It further appears from the complaint and also from the transcript that the de

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fendant was not the owner of a considerable portion of the premises inclosed by the fence and that the plaintiff, relying upon the representations made by the defendant as to his ownership, made improvements upon that part of the premises inclosed by the fence aforesaid which, did not belong to the defendant and the title to which the defendant could not and did not transfer to the plaintiff by the deed herein referred to. It further appears from the testimony and the findings of the court that the plaintiff made improvements upon the premises altogether of a value of $653 and that the reasonable value of the land which the defendant purported to convey to the plaintiff and which he did not convey was of the value of $100. As a conclusion of law it was determined that the plaintiff was entitled to judgment against the defendant by reason of the facts referred to in the sum of $753.

Only one point is urged as a reason for reversing the judgment of the trial court, to wit, that the action was prosecuted without first surrendering the premises to the defendant or any attempt made by the plaintiff to place the defendant