Cowell v. Clark

STURTEVANT, J. The trial court sustained the defendant’s demurrer to the plaintiff’s complaint. From the judgment entered the plaintiff has appealed. The complaint contained two counts. In the first count the plaintiff alleged that on the 12th day of November, 1935, the. State of New Mexico was the owner of lands situated in the county of Eddy in said state, and described the lands as 2 lots and 9 forties each containing forty acres or more; that on said day it executed to the plaintiff a gas and oil lease which the plaintiff pleaded in kaec verba-, that plaintiff is proposing to assign rights to others in units of forty acres as said lands are described in the United States geological survey of said lands; that he does not propose nor intend to assign rights to any of said lands in smaller divisions; that all of said assignments are to be for gas and oil; that said assignments are to be on a form which he pleaded in kaec verba-, that defendant is the real estate commissioner of the State of California; that on July 2, 1936, the defendant as such commissioner caused to be served on plaintiff an order to show cause why the plaintiff should not be restrained from executing to others the assignments or leases above mentioned; that said order to show cause purports to be issued pursuant to the provisions of sections 20a to 20l, inclusive, of the California Real Estate Act (Deering’s Gen. Laws, 1937, Act 112, secs. 20a et seq.) ; and that said sections are unconstitutional and void and in contravention of section 1, article VI, and section 1, article III, of the Constitution of California. The second count pleads the same facts and, in addition that a controversy exists between the parties as to whether the intended acts of the plaintiff constitute a “subdivision” or a “subdividing” within the meaning of said sections of said statute. The rec[258]ord presents no question of the sufficiency of either count except the sole question as to whether plaintiff’s said acts are in contravention of said statute and whether the said provisions of said statute are in contravention of the Constitution as hereinabove set forth. There was no allegation that plaintiff ever notified'the defendant of his intention to make the assignments which he was about to make to other persons.

The plaintiff complains because the trial court sustained defendant’s demurrer to the second count pleaded by the plaintiff. The specific facts were set forth in each count. If the plaintiff’s claim that he was not “subdividing”, as that word is used in the statute, is well founded, then the demurrer should not have been sustained as to either count. But, as will appear below, his said claim regarding the meaning of the statute may not be sustained. For that reason the trial court did not err in sustaining the demurrer te the second count.