Roark v. Southern Trust & Commerce Bank

FINCH, P. J.

In. April, 1920, the plaintiff and the defendant Daniel A. Deacon purchased an apartment house, containing twelve apartments, in the city of San Diego. Title was taken in Deacon’s name with the understanding and agreement that he would convey a one-half interest in the property to the plaintiff upon payment by the latter of a specified part of the purchase price of the property. At the time of the trial Deacon was the owner of a one-fourth interest in the property as tenant in common with his divorced wife, who owned a one-fourth interest, and the plaintiff, who owned a one-half interest, subject to an indebtedness of $6,500. The case was tried on issues raised by Deacon’s cross-complaint and the plaintiff’s answer thereto.

The prayer of the cross-complaint is for a judgment determining the rights if the parties in the property, adjudging that the plaintiff’s rights therein are subject to an indebtedness of $6,500, partitioning the property and settling the accounts between the parties. By a supplemental cross-complaint Deacon alleged that “at all times since the first of May, 1926, cross-defendant A. T. Roark has been in sole possession” of eight of the apartments and “has held the same adversely to the said Daniel A. Deacon, and has refused possession of said apartments, or any of them, to the said Daniel A. Deacon, and has exercised sole and absolute control over each and all of said apartments; that the said A. T. Roark has forcibly prevented the said Daniel A. Deacon from entering into possession of said . . . apartments, or any of them; that said Daniel A. Deacon was entitled to possession thereof.” Based on these allegations, Deacon demanded that the plaintiff “account for the rental

[523]

value of each and all of the apartments so held to the exclusion of the cross-complainant.”

An accounting was had and, based thereon, judgment was entered in favor of the plaintiff for $27.57. The judgment also requires the cross-complainant to execute a deed conveying the undivided one-half of the property to the plaintiff on payment by the latter of $6,500. The cross-complainant has appealed from the judgment.

Appellant contends that the court “erred in refusing to receive evidence on the issues of partition” and in adjudging that the plaintiff is entitled to a deed upon payment of the sum of $6,500, basing the latter contention on the ground that there was no such issue before the court. That issue, however, was tendered by the appellant’s cross-complaint. In answer to the point- first mentioned, it is sufficient to say that, prior to the trial, the appellant dismissed his cross-complaint “in so far as he asks for a partition of the property.”