McCaughey v. Schuette

The Court. After a careful examination of the points involved in this appeal we are satisfied with the opinion and judgment rendered in Department. For the reasons given in the Department opinion the judgment and order appealed from are reversed, and the court is directed to sustain the demurrer to plaintiff’s complaint, with leave to plaintiff to amend.

The following is the opinion rendered in Department One, October 22, 1896:

Searls, C. This is an action to recover possession from the defendants, who are appellants here, of lots A, B, 0, J, K, and L, in block 131 of Horton’s addition [224]to Sau Diego, county of San Diego, state of California.

Plaintiff had judgment, from which judgment and from an order denying their motion for a new trial defendants appeal.

The complaint was demurred to upon the ground, among others, that it does not state facts sufficient to constitute a cause of action. We think the demurrer should have been sustained.

The complaint may be summarized thus: 1. December 22, 1891, defendants made their promissory note to plaintiff for two thousand dollars, and, to secure the payment thereof, executed a mortgage upon the lots of land sought to be recovered in this action; 2. Afterward and on the twenty-second day of March, 1893, plaintiff and defendants entered into an agreement, by the terms of which said defendants agreed to convey to plaintiff, and the latter agreed to take, said real property in full payment of the note and to release defendants from liability thereon, and deliver the same up to defendants and to discharge of record the mortgage; 3. That on the twenty-third day of December, 1893, defendants delivered to plaintiff their grant deed of said premises, and the latter delivered up the note and discharged the mortgage of record. Said deed from defendants to plaintiff, and the note and mortgage, are made part of the complaint; 4. At the date of the delivery of the deed there was two thousand five hundred and one dollars and twenty-eight cents due on the note, and the deed was made in payment thereof. 5. Defendants are in possession of the premises and plaintiff has demanded possession thereof, which said defendants refuse to deliver up, and exclude plaintiff therefrom against his will and right.

Wherefore, he demands judgment for the delivery of possession of said premises, etc.