Koch v. Wilcoxon

JAMES, J.

Appeal from a judgment in favor of plaintiff, and from an order denying to defendant Doherty a new trial.

Plaintiff brought this action to quiet title to a certain lot of land in the county of Los Angeles. The main facts, as found by the trial judge and shown by the evidence in the bill of exceptions, are in brief as follows: Marcelle Koch, being the owner of the lot in question, while in the city of San Diego was interviewed by defendant Wilcoxon, who claimed to have a purchaser for the lot in Los Angeles County. Wilcoxon stated that his purchaser would pay the sum of six thousand five hundred dollars in cash for the lot. He further stated that he did not have the name of the purchaser, but that if plaintiff would make out a deed leaving the name of the grantee blank, he, Wilcoxon, would take the deed to Los Angeles, meet the purchaser, deliver the deed after inserting the name of such purchaser, and remit the

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amount of the purchase price forthwith to the plaintiff. The deed was made out accordingly on about the twenty-second day of February, 1912, in San Diego. The name of the grantee ivas first left in blank, but after plaintiff had acknowledged the deed in that form the notary made some suggestion as to the possible invalidity of such an instrument; so thereupon it was agreed that Wilcoxon’s name should be inserted in order to enable the latter to complete the transaction of the sale according to his agreement. Wilcoxon took the deed and returned to the city of Los Angeles. The plaintiff received no money and some months later, upon coming to the city of Los Angeles, found that Wilcoxon had not only occupied the house, which was upon the lot, with his family, but had also rented the same to a tenant from whom he collected one hundred dollars per month. Wilcoxon, when the return of the deed was demanded, first stated that he had mailed it to the plaintiff at San Diego, and later declared that the deed had been lost. On an examination of the records being made, the plaintiff discovered that the deed had been placed of record, which apparently transferred title to Wilcoxon. Prior to the making and recording of this deed to Wilcoxon, the defendant Doherty was a judgment creditor of Wilcoxon in the sum of $4,653. The judgment was obtained in a neighboring county, and an abstract thereof had been recorded in the offices of the county clerk and county recorder of Los Angeles County. Doherty, being unable to secure satisfaction of his judgment, afterward made some agreement of compromise with Wilcoxon whereby Doherty was to receive two thousand dollars in full payment of the judgment; five hundred dollars to be paid in cash, the balance in deferred payments. Wilcoxon did not fulfill his part of this contract requiring the payments on the judgment account. In the meantime, Doherty, the judgment creditor, had discovered that title to the lot hereinbefore referred to stood in the name of Wilcoxon on the public records, and proceeded to have execution issued and levied upon the lot in order to subject the same to sale and satisfaction of his judgment. After this execution was issued and the levy made, the plaintiff here brought this suit to quiet title to her lot, the complaint being in the form customarily used in such actions. A