Cathcart v. Redlands Security Co.

GRIFFIN, J. Plaintiff and respondent brought this action to partition certain real property under the provisions of [593]section 752 et seq. of the Code of Civil Procedure. It is alleged that plaintiff and defendant Redlands Security Company, a corporation, hereinafter referred to as the company, are the owners as tenants in common of the real property described in the complaint; that plaintiff is the owner of a three-fourths interest and that defendant company is the owner of a one-fourth interest therein; that defendants are in possession thereof; that on February 20, 1931, plaintiff executed to defendant company a promissory note for $18,000 secured by a trust deed, in the usual form, constituting a first lien upon plaintiff’s three-fourths undivided interest; that defendant Security Title Insurance & Guarantee Company, a corporation, is named as trustee therein. The petition prays for a partition of the real property and if partition cannot be had that the premises be sold, etc. Defendant company answered and after trial the court found the allegations of the complaint to be true and ordered, by interlocutory judgment, that partition of the premises be made in accordance with the several respective interests of the parties and that in case partition cannot be so made without prejudice thereto then compensation shall be made by one of the parties to the other for equality of partition. The order appointed three referees with full power and authority to make partition accordingly and report thereon to the court in accordance with the provisions of the Code of Civil Procedure above mentioned.

The factual background of the present action is disclosed in Cathcart v. Gregory, 45 Cal.App.2d 179 [113 P.2d 894]. At the trial defendants placed in evidence the judgment so affirmed on appeal. This action was instituted to effect partition of the portion of the 280 acres referred to in that decree which remained after the conveyance by the company to plaintiff of the parcels and releases therein set forth. Defendants appealed from the interlocutory judgment.

It is now argued first that division in kind cannot be made where an undivided interest is incumbered and that therefore the interlocutory judgment should have provided for a sale of the property and payment of the trust deed out of the plaintiff’s three-fourths of the net proceeds, citing Wernse v. Dorsey, 2 Cal.2d 513, 515 [41 P.2d 935]; Deacon v. Deacon, 101 Cal.App. 195 [281 P. 533]; Holt v. Holt, 131 Cal. 610 [63 P. 912]. These cases are authority for quite a different rule of law from that contended for by defendants.