d'Artenay v. Hansen

MARKS, J. This is an appeal from a judgment entered after the sustaining of an amended demurrer to plaintiffs’ complaint without leave to amend. The demurrer was both general and special. Among various grounds it plead the bar of the cause of action by the provisions of subdivision 1, section 339 of the Code of Civil Procedure.

An examination of the complaint discloses the following allegations: That the plaintiffs and the defendants were husbands and wives; that on or about September 1, 1922, a written contract was entered into whereby the defendants agreed to sell land in Kings County, together with 320 shares of water stock, to J. A. d’Artenay, and on the same day entered into a written amendment of the contract, copies of both of which agreements were attached to the [41]pleading; that J. A. d’Artenay entered into possession of the property and retained possession until he was ejected by process of court; that on June 20, 1929, defendants commenced an action in the Superior Court of Kings County against these plaintiffs to quiet the title to the real property in question; that these plaintiffs filed an answer in the quiet title action setting forth the two contracts of September 1, 1922’, and alleging that J. A. d’Artenay had performed all of the terms and conditions of the two contracts to be performed by him; that the action was tried; that judgment was rendered on October 28, 1929, quieting the title of Nis and Minnie D. Hansen to the real property and canceling the two contracts of purchase; that execution was immediately issued and J. A. and Octavia d’Artenay ejected from the property; that J. A. and Octavia d’Artenay appealed and the judgment was reversed and remittitur filed on May 20, 1932 (see Hansen v. d’Artenay, 121 Cal. App. 746 [9 Pac. (2d) 889]); “that the commencement of said action, and the making and entry of said judgment, and the ejection of said plaintiffs (J. A. and Octavia d’Artenay) from said premises thereunder as aforesaid, were without legal cause or right, and that it was the intent of said defendants (Nis and Minnie D. Hansen) in causing said unauthorized acts, to abandon said contract and said modification thereof, and to rescind the same”; that prior to the commencement of the quiet title action J. A. and Octavia dArtenay had paid Nis and Minnie D. Hansen $51,485.32 on account of the purchase price; that at the time that action was instituted “the plaintiff J. A. d’Artenay had performed all "of the terms and conditions of said agreement and modification thereof required of him to be performed thereunder”; “that said plaintiffs (J. A. and Octavia d’Artenay) have elected, and do hereby elect, to treat said contract as abandoned as aforesaid, and have therefore demanded, and hereby demand, from said defendants (Nis and Minnie D. Hansen) the repayment to plaintiffs (J. A. and Octavia dArtenay) of said sum of fifty-one thousand four hundred eighty-five dollars and thirty-two cents ($51,485.32); that since said judgment of reversal, and preceding the commencement of this action, plaintiffs (J. A. and Octavia d’Artenay) served upon defendants (Nis and Minnie D. Hansen) notice in writing of said election and said demand, a copy of which