Hayward v. Black

RICHARDS, J.

This is an appeal from a judgment in This favor of the plaintiffs in an action to quiet title. The complaint is in two counts, in the first of which the plaintiffs, after alleging themselves to be the owners in fee simple and possessed of the tract of land involved in the action, allege that the defendant, George A. Black, claims some interest in said parcel of land adverse to.the ownership of plaintiffs, which claim is without right, and the defendant has no right, title, or interest in or to any part of said premises. The second count adopts the above averments of the first count, and then proceeds to set forth two instruments in

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writing which, being recorded, are alleged to be a clond upon the plaintiffs’ title. The first of these is termed an agency-agreement, wherein the plaintiffs purport to authorize and employ said defendant to act as their agent in negotiating a sale of said property. This agreement purports' to be signed with the names of the plaintiffs by one Archie Hood, as agent, and by said- defendant. The other agreement is one purporting to be made by the plaintiffs, through said defendant acting as their agent under the prior agreement, with one J. G. Gardner for an exchange of certain property of the latter for the said property of the plaintiffs upon certain terms. The plaintiffs allege that neither of them ever authorized said Archie Hood or the said defendant or any other person to sign their names or the name of either of them to either of said agreements, and that both of said agreements are void. Wherefore the plaintiffs pray that their title be quieted as against said defendant.

The defendant demurred to the sufficiency of this complaint, which demurrer was overruled, and he thereupon filed, an answer and counterclaim, to which the plaintiffs demurred, and which demurrer the trial court sustained. Thereupon the defendant presented an amended answer and counterclaim, wherein he expressly denied that he claimed any interest whatever in the lands of the plaintiffs, but in respect to the second cause of action alleged certain facts tending to show that he had been created the agent of the plaintiffs by virtue of the first agreement set up in said second cause of action, and that by virtue of such agency he had entered into the agreement with said Gardner set forth in the plaintiffs’ complaint, and had thereby become entitled to a real estate agent’s commission amounting to seven hundred dollars for having produced said Gardner as a purchaser of the plaintiffs’ said premises under said agreements, for which amount he prayed judgment against said plaintiffs. Plaintiffs also demurred to this amended answer and so-called counterclaim, and upon hearing said demurrer the trial court sustained the same without leave to amend, and thereupon proceeded to take testimony and make its findings of fact and conclusions of law thereon in favor of the plaintiffs, quieting their title as against said defendant.