Hedden v. Waldeck

California Court of Appeal Feb 27, 1928 No. Docket No. 6130.Published

Before: Koford

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Holding. The court affirmed the judgment regarding the forcible entry and detainer claims, but reversed the judgment regarding the right to possession, holding that an executory contract for the exchange of land that is not capable of specific performance does not grant the defendant a right to possession against the owner.

Issues

Whether the defendants were guilty of forcible entry or detainer.
Whether the defendants were entitled to possession of the premises under an executory contract of exchange that is not capable of specific performance.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“The court found that the agreement of exchange was not procured by fraud and that defendants obtained possession peaceably.”

“The right of possession is a part of the title and the same rule applies to ejectment as well as to quiet title.”

KOFORD, P. J.

JThe plaintiffs, husband and wife, brought this action for possession. It was labeled an action for forcible entry and detainer, but is referred to in the briefs as ejectment. It was tried by stipulation at the same time and upon the same evidence as case No. 6129,

Waldeck

[495]

Hedden et al., ante,

p. 485 [265 Pac. 340], a specific performance case between the same parties. Separate findings and judgment for the defendant were made and entered.

No separate briefs are filed for this case. It is submitted upon the briefs in case No. 6129,

supra.

The briefs in that case make scant reference to this one. The only evidence printed is that printed by appellant in case No. 6129. The pleadings of this case are not printed in the briefs, although the record is brought here under the alternative method of appeal provided by Code of Civil Procedure, section 953a. The briefs in referring to this case call it an action in ejectment. The clerk’s typewritten transcript shows that the complaint in the first cause of action alleges that on July 27, 1922, while plaintiffs were in peaceable possession of the north one-half of lot 105 and all of lot 106, Shoreline Villa Tract on Branner Avenue, “the defendants, by means of fraudulent pretenses, deceit and misrepresentation herein after mentioned and by force also, entered the premises and that they have ever since unlawfully and forcibly against the will and consent of these plaintiffs held and kept possession . . . ” Then follow allegations of fraudulent representations inducing plaintiff Hedden to make the agreement of exchange. This agreement and these alleged fraudulent representations are the same as were pleaded in the specific performance case. The complaint alleges service of notice to surrender and quit possession and prays for restitution of the premises, damages, and costs.

No evidence is indicated or printed to show that the defendants did not obtain possession peaceably. The theory of the first cause of action seems to be that the alleged fraudulent representations constituted the alleged force in gaining possession of the property. The court found that the agreement of exchange was not procured by fraud and that defendants obtained possession peaceably. The finding against fraud, as we point out in case No. 6131,

Hedden v. Waldeck

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KOFORD, P. J.

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