Hall v. Cole
Before: Belcher
Synopsis
Removal of Buildings—Suit for Recovery—Cross-complaint.— Under Code of Civil Procedure, section 442, providing that, when a defendant seeks affirmative relief relating to the transaction upon which the action is brought, he may file a cross-complaint, a cross-complaint in an action to recover buildings removed from plaintiff’s land which alleged that plaintiff purchased the land and erected the buildings for defendants, agreeing to convey the premises to them when they could purchase the same; that defendants tendered him the purchase price therefor, but that he refused to give them a deed thereto, and which prayed judgment that plaintiff deed the property to defendants, was improperly stricken out.
Removal of Buildings.—In an Action to Recover Buildings Removed • from plaintiff’s land, wherein defendants admitted that plaintiff purchased the land and erected the buildings, but claimed to own the premises by reason of plaintiff’s agreement to sell the same to them, and their tender to him of the purchase price, plaintiff testified that he agreed to sell the premises to defendants, and that they advanced him money to apply in purchasing the land and erecting the buildings, but that they withdrew all of the same soon after; that he let defendants' go into possession of the premises without any further transaction; that thereafter defendants tendered him the purchase price of the land, only, and he told them merely that he could not give them a deed, but would have to see the man who then held the title to the property to secure a loan to plaintiff, held, that ownership of the buildings not appearing in defendants, a nonsuit was improperly granted.
BELCHER, C. The plaintiff brought this action to recover the possession or value of a dwelling-house and barn, [929]alleged to have been wrongfully moved by the defendant Isabell Cole from a lot of land described as “Lot 34 of La Mesa Colony,” in the county of San Diego. The complaint sets up facts showing that the plaintiff purchased and paid for the said lot, and erected the house and bam thereon, and that, without his consent or knowledge, the defendant Isabell Cole moved the same to an adjoining lot owned by defendants, who were husband and wife. The answer denied that the plaintiff was the owner of the said house and barn, or either of them, or entitled to the possession thereof, and alleged that, at all times since the erection of said house and barn, the defendant Isabell Cole had been, and still was, the owner thereof. The answer then proceeded to state, in effect, that the plaintiff purchased the said lot for and on account of the defendant Isabell Cole, for the sum of $900, less $25 allowed him by the owner for making the sale, and that she advanced to him, in part payment therefor, the sum of $550; “that within a few days thereafter the plaintiff stated to the defendants that he had purchased said land for the defendant Isabell Cole, and that there would be a few days’ delay in preparing the title to her, but he advised them to take immediate possession of it, and to grub and plow and improve it, and stated to defendant Isabell Cole that he would immediately build for her a house on said land, which would be hers, and a home for her as long as she lived, and that she could pay for it when she got ready, and could have as much time in which to do so as she desired”; that the plaintiff built on the said lot the house mentioned in his complaint, for the defendant Isabell Cole, “and that after the completion thereof, at the request of plaintiff, the defendants moved into, took possession of, and occupied, said house, as their own, and not as the property of the" plaintiff, and that said house and said barn were from the first commencement of the erection thereof, arid ever since have been, the property of the defendant Isabell Cole, and that said house, at the time of its erection, set upon blocks on the surface of the ground on said lot 34”; that, at the time of making the payment of $550, it was agreed between plaintiff and defendant Isabell Cole that he would, as soon as it could be done, cause a deed to be made to her for said premises, and that she should execute a mortgage for the balance of the purchase money [930]
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