Ouzoonian v. Vaughan

[370]

HART, J.

This is a motion to dismiss the appeal herein. The action was one for the quieting of the title to certain real property situated in Fresno County as against the defendants and also for the recovery of certain personal property. The complaint also asks for the appointment of a receiver to take charge of said real and personal property. The court appointed a receiver, and the latter, by virtue of the authority vested in him by the court, took possession of the real property and also certain personal property. The action grows out of a certain contract whereby the plaintiffs and the defendants agreed to exchange and sell to each other certain real and personal property. The agreement, among other things, provided that, immediately upon its execution, the defendants were to take possession of the premises exchanged or sold to them by the plaintiffs, and the complaint alleges that the defendants did take such possession. The agreement further provided that, in case of the violation by the defendants of certain of the covenants or conditions thereof, the plaintiffs should be at liberty to declare the agreement forfeited and that all payments theretofore made should be treated as liquidated damages and that the plaintiffs might enter said premises, “remove all persons therefrom, and be released in law as well as in equity to convey said premises.” The appellant, by leave of the court, was permitted to intervene. The complaint in intervention alleges that the defendants, on the first day of June, 1921, and after the execution of the agreement above mentioned, borrowed from the intervener the sum of two thousand five hundred dollars, and gave their promissory note therefor, payable on or before two years after date, with interest from March 1, 1921, at the rate of seven per cent per annum; that, to secure the payment of said note, the defendants, on said first day of June, 1921, executed and delivered to the intervener a mortgage on fifty-five per cent of the crop of alfalfa, Thompson and Muscat grapes and raisins for the year 1921, and all other crops for the year 1922 grown and produced upon said premises. It is alleged in said complaint in intervention that said defendants “have failed, neglected and refused to pay the amount due on said note, or any part thereof, and that the same is now justly due and owing in full over and above all offsets of every