Orloff v. Mosher

BARNARD, P. J. This is an action in partition and to quiet title. The complaint alleged that a certain 160 acres of land in Fresno County was owned as joint tenants by the plaintiff and Cleon Mosher, who was formerly the wife of the plaintiff. About two months after the action was filed Cleon Mosher conveyed her interest in the property to the plaintiff and a supplemental complaint was filed alleging that fact. An answer and cross-complaint were filed by defendant Dorothy L. Brockman, who claimed to be the owner of 40 acres- of this land under a deed to her from Frank Pruher. Frank Pruher died and the administratrix of his estate was substituted as a defendant and filed an answer in which it was alleged that said estate is the owner of another 80 acres of the land.

At the conclusion of the plaintiff’s case the defendant Brock-man moved for a nonsuit. A ruling on this motion was reserved. The matter was not again called to the attention of the court and no ruling was made. Evidence was put in by the answering defendant and rebuttal evidence by the plaintiff followed.

The court found in all respects in favor of the plaintiff [8]and against the answering defendants. Among other things, it was found that the plaintiff and Cleon Mosher were the owners as joint tenants of the property in question; that Cleon Mosher had by deed conveyed her interest in the property to the plaintiff; that as a result of this conveyance a partition of said real property is not desirable or proper; that the plaintiff owns a fee simple title in and to said property; that no defendant or any other person has any title to or interest in said property; that on October 8, 1931, the plaintiff and the defendant Cleon Mosher, who then owned the property, went to the office of G. C. Harbolt, a duly licensed real estate broker in Los Angeles for the purpose of selling this real property; that Harbolt had informed them that, he had a prospective purchaser; that a purchase price of $325 payable in cash was agreed upon between Harbolt and the Orloffs; that the plaintiff suggested that the delivery of the deed and payment of the purchase price should be made through a bank as escrow holder; that Harbolt objected on the ground that this would take too long and the buyer would not wait; that Harbolt suggested that he be the escrow holder, pointing out that he was a real estate broker and that it was customary for such brokers to act as escrow holders; that the Orloffs then consented that Harbolt should be the escrow holder on the condition that the deed should be left blank as to a grantee until the purchase price was paid in cash, that Harbolt would hold the deed in escrow until the purchase price was personally paid to the Orloffs, and that the insertion of the name of the grantee in the deed should take place in the presence and under the direction of the plaintiff after the full payment of the purchase price; that upon these conditions the ■ Orloffs signed and left with Harbolt-a deed to the property without any grantee being named therein and without acknowledging either of their signatures; that neither the plaintiff nor the defendant Mosher ever gave to any person any authority to complete, alter, deliver, record or otherwise deal with this deed in any manner other than as above set forth; that in violation of the escrow instructions, and without any authority from the plaintiff or the defendant Mosher, this deed was by some person completed by the forged insertion therein of the name of Frank Pruher as grantee and a false certificate of acknowledgment by a notary public was affixed to said deed; that as so completed by said forgery and by said false certificate of acknowledgment, and without being delivered by the