Brooks v. Faulkner

JAMISON, J.,

pro

tem.

This is an action for specific performance of a contract for the sale of certain real property in the. city of Los Angeles and for damages. Judgment was rendered for defendants and from this judgment plaintiffs appeal. This appeal was brought up on the judgment-roll alone.

It appears from the pleadings that on May 15, 1928, George M. White and Myrtle E. White, his wife, executed a deed of trust in the sum of $50,000 to respondent Faulkner. Thereafter the said Whites defaulted and, following the procedure required by law, the trustee proceeded to offer said property for sale. Same was purchased by said Faulkner on December 26, 1929, and on that date a trustee’s deed was issued to said Faulkner, which was recorded on January 7, 1930. On August 12, 1929, appellant Brooks purchased the said property from the Whites and continued to be the owner until the said trustee’s deed was issued to Faulkner. On October 11, 1929, the said Brooks began an

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action against Faulkner and other defendants to enjoin the sale under said deed of trust. On January 3, 1930, said Faulkner commenced an action against said Brooks, Boyds, E. D. Bunn and W. A. Spaulding for the unlawful detainer of the said premises. Thereafter, on January 17, 1930, an agreement in writing was entered into between Faulkner and Brooks, the Boyds, E. D. Bunn and W. A. Spaulding wherein the parties agreed that the action to enjoin the sale under the deed of trust should be dismissed, and that judgment he entered in the unlawful detainer action as follows: That the defendants (in that action) are to deliver possession of said premises on or before March 9, 1930, and if not so delivered plaintiff shall be entitled to a writ of assistance on the tenth day of March, 1930, or as soon thereafter as plaintiff shall make application therefor; that the said Faulkner will leave in the hands of his attorney, Elijah M. Smuekler, a good and sufficient deed of said property to said Brooks; that said property shall be subject to the taxes for the year 1930-31, the second half of the taxes for the year 1929-30, and a deed of trust for a balance of $48,750; that said deed be placed in escrow by the said Smuekler at any time before March 9, 1930, that he is called upon to do so by the said Brooks and the Boyds; that said Brooks, the Boyds or any of them, through said escrow, is to deliver to said Smuekler for said Faulkner the sum of $51,250 cash as consideration for said deed on or before March 9, 1930. Said agreement also provided that the first deed of trust on said property (evidently referring to the deed of trust for $48,750) became due and payable on the ninth day of February, 1930, and if the same were foreclosed pending the negotiations of the parties thereto, the said appellants agreed to hold and save harmless the said Faulkner.