Bloom v. Bloom

SEAWELL, J.

This is the second appeal taken hy plaintiff in this action. The facts are sufficiently stated in our consideration upon the first appeal, reported in

Bloom

v.

Bloom,

207 Cal. 70 [276 Pac. 568]. The plaintiff in the original action filed a complaint in the usual form to quiet his title to three .parcels of land in the county of Santa Cruz. The defendant answered, denying absolute title in the plaintiff and alleged that the plaintiff’s interest was founded upon a deed conveying to him the title to the three parcels of land described in the complaint and two other parcels described in the answer, which deed, although absolute in form, was alleged to be in fact a conveyance of the title to the plaintiff upon the trusts resulting from an agreement of the parties and evidenced by a letter exchanged between them whereby the title was to be held by the plaintiff as security for loans and advances, reconveyance to be had upon payment to the plaintiff of the amount of such loans and advancements. The defendant prayed that an accounting be had as to all five parcels and that upon the ascertainment of the amount due from the defendant to the plaintiff, the plaintiff be required to re-convey the three parcels described in the complaint upon the payment or tender to the plaintiff of the amount so found to be due. Prior to the commencement of the action the plaintiff had conveyed the two parcels described in the answer to innocent third parties for value without notice of the defendant’s claims. The accounting was had and

[596]

the amount of the loans and advances due from the defendant to the plaintiff was found by the court to be the sum of $8,930.24, with interest at the legal rate from June 9, 1925. The court found that the deed was as and for the purposes alleged in the answer and adjudicated that the plaintiff’s title be not quieted, but that the plaintiff execute a deed conveying to the defendant the title to the property described in the complaint upon the payment to the plaintiff of the amount found to be due in accordance with the agreement of the parties. The plaintiff in said first appeal from the judgment based his appeal on the ground that the evidence was insufficient to support the findings and that the judgment was uncertain and incomplete in that no time was fixed within which the defendant was required to pay the amount found to be due the plaintiff as a condition upon which the defendant would be entitled to a reconveyance. We held in our former decision that the evidence was sufficient to support the findings, but as the judgment did not adequately protect the plaintiff’s rights nor completely dispose of the controversy, the cause was remanded, with directions as stated in our opinion. We were of the view that the judgment as it then stood imposed the burden of further advances by way of taxes and maintenance charges upon the plaintiff and the defendant was permitted to delay indefinitely the payment of the amount found to be due, and therefore if the judgment were permitted to stand, the plaintiff’s title was not quieted, notwithstanding the fact that defendant might never pay the amount found to be due. The plaintiff suggested that the proper method to have been pursued was that an interlocutory judgment should have been rendered, directing that a reconveyance be executed on the payment by the defendant of the amount found to be due from the defendant to him, and that a time should have been fixed within which the defendant should have been permitted and required to make such payment, in default of which the plaintiff’s title should be quieted. Or, as another alternative, that the court should have ordered the property sold, subject to the right of the defendant to redeem as in foreclosure. We held, however, that under the contract of the parties and the allegation of the defendant’s answer and the form of his prayer for affirmative relief, he had consented to the