Russakov v. the McCarthy Co.

WASTE, C. J.

The above-entitled actions, consolidated for purposes of trial and appeal, were instituted to have declared and enforced a trust in certain moneys awarded to the defendant McCarthy Company by the defendant City of Los Angeles in satisfaction of judgment entered in a certain condemnation proceeding. The defendant city has no interest or concern in the outcome of this litigation other than that of a stakeholder, the award money being in its possession at the commencement of suit. Any claim that the respective plaintiffs may have in and to the disputed fund arises out of and is founded upon assignments, for purposes of collection only, of the rights of persons asserting an interest or estate in the property condemned, by reason of their having agreed and contracted to purchase, from the McCarthy Company, thirteen described lots, a portion of each of which was thereafter appropriated to the public use. It is the theory of the plaintiffs that their assignors, by the agreements to purchase, became the equitable owners of the lots and were, therefore, proportionately entitled to any moneys thereafter awarded for the appropriation by condemnation for public uses of any parts or parcels of the purchased lots. Judgment went for the defendants in each action, and they were dismissed with their costs. The plaintiffs appeal.

The McCarthy Company was the owner of what is known as the McCarthy Bungalow Home Tract No. 2395, in the. City of Los Angeles. The portion of the tract with wdiich we are concerned includes lot 6 and lots 20 to 31, inclusive, of block 3, all of which front on Florence Avenue. On April 9, 1921, the defendant city commenced a proceeding to widen Florence Avenue by taking a strip of land twenty

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feet in depth from the frontage of all lots facing on that avenue. Title to the thirteen lots herein involved stood in the name of the McCarthy Company at that time, and the company was named as a defendant. A contract with one Herman Fuhrmeister, covering lots 25 and 26, alone antedated the institution of the condemnation proceedings; but, subsequently, and in each instance prior to the entry of the interlocutory judgment therein, the McCarthy Company contracted to sell to the plaintiffs’ assignors, or their predecessors in interest, some one or more of the several lots above indicated. On July 24, 1924, the interlocutory judgment was entered, awarding to the defendant McCarthy Company a lump sum of $16,053, the fund here in dispute, as compensation for that portion of the frontage taken from each and all of the lots. When this award was made the terms of three of the contracts, above referred to, covering lots 6, 25 and 26 and 29, had been faithfully performed by the purchasers, and deeds conveying said • lots to the respective purchasers had been duly executed and delivered. The remaining eight contracts were still executory.