Ellsworth v. Palmtag

MELVIN, J.

Defendant appeals from a judgment against him.

The complaint alleged that on May 25, 1909, plaintiff and defendant were the owners as tenants in common, each entitled to an undivided half interest, of the following described real property in San Bernardino County: “The south one-half (S.

½)

of the southwest quarter (S. W.

¼)

of'the northeast quarter (N. E.

¼)

of section numbered five (5) township one (1) south, range three (3) west, San Bernardino base and meridian”.; that on the above date plaintiff and defendant agreed to partition this land and in the execution of said arrangement plaintiff was to convey his undivided half interest in the land to Palmtag and the latter was to convey to Ellsworth the south one-half of the said tract; that deeds were

[361]

executed by the respective parties accordingly and were delivered to J. A. Scott of San Bernardino with the agreement between Ellsworth and Palmtag that Scott should place the deeds with the Eedlands National Bank there to be held until defendant should demand the deed of plaintiff's interest to him; and that upon delivery of the last mentioned deed, then the deed of Palmtag to Ellsworth should be delivered to the latter. It is further alleged that Scott deposited the deeds with the Eedlands National Bank; that the bank thereafter delivered both deeds to Palmtag who immediately placed of record the one in which he was mentioned as grantee and then conveyed the north half of the property to one Hanson; and that he refuses to deliver the other deed to Ellsworth, his grantee thereunder. The prayer is for a decree declaring that Palmtag has no estate or interest in the south half of the described tract; that Ellsworth’s title is valid; that Palmtag be enjoined and debarred from asserting title to said premises adverse to Ellsworth; that Palmtag be required to deliver to Ellsworth the deed to the south half of the described land or if that be impossible to execute a new deed in lieu thereof or if he refuse to do either, that a commissioner perform that function for him. Damages are also prayed for.