Lake v. Dowd

THE COURT.

The judgment in department was set aside and the hearing in bank ordered to the end that the questions involved might be given further consideration. Upon such further consideration we are satisfied with the opinion in department prepared by Mr. Justice Preston and adopt the same as the opinion of the court in bank. It is as follows :

“By stipulation cross-appeals are submitted on one bill of exceptions. Defendants appeal from the whole judgment. Plaintiffs appeal from that portion of the judgment only which withholds the full relief prayed for by them. If the defendants prevail upon their appeal, the whole judgment must be reversed and the appeal by plaintiffs becomes abortive.

“A careful consideration of this cause, together with independent search of the authorities, convinces us that the appeal of defendants must be sustained and the whole judgment reversed. Plaintiffs and some ten other persons owned in undivided interests 240 acres of a half section of 320 acres of land in the county of Kern. The remaining 80 acres were held in a like undivided interest by one C. T. Dunkle. Dun

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kle desired to purchase in 10-acre blocks the interests of the other owners. On December 14; 1923, plaintiffs and their associates, binding themselves together by mutual covenants, entered into a written contract wherein they constituted Mervyn R. Dowd as a trustee for the purpose of selling their said property to said C. T. Dunkle and to that end and for that purpose agreed to and did execute and deliver to the said Dowd as grantee an ordinary grant, bargain and sale deed of their respective interests in said property. The written agreement above mentioned contained the terms and conditions of sale and rested upon the mutual covehants therein contained, the last and most significant of which was as follows: ‘Upon receipt by the said trustee of the first payment of one thousand ($1,000.00) dollars, each of the grantors hereby agrees with all of the other grantors that his or her interest in said lands shall thereupon be converted into and deemed to be and held as an interest in common in said entire half section with all other owners and not in severalty. ’

“Acting under said contract and the deed made pursuant thereto said trustee Dowd transferred and conveyed certain portions of said land to the said Dunkle and received certain moneys from him on account thereof. Plaintiffs brought this action against the said Dowd as trustee and against the said Dunkle to have said trust agreement declared void as to them, to have the deed cancelled as to them and to have their title to their former interest in said lands declared and quieted against the claims of said defendants. The defendant Dunkle, it is claimed, was a purchaser with notice of their rights, and further plaintiffs alleged that they had been damaged in the premises in the sum of $5,000. Defendants answered denying the grounds set up for the cancellation of said deed and for the quieting of plaintiffs’ title to said land and in addition thereto filed their cross-complaint asking that said underlying agreement be declared valid and that the title of said trustee be quieted as to said real property as against said plaintiffs and cross-defendants Fred W. Lake and Fannie D. Lake, and that said plaintiffs be estopped, enjoined and forbidden from asserting any right, title or interest in and to the premises save such interest as they might have under the written contract above described.