Khatchadourian v. Davidian

BARNARD, P. J. This is an appeal from an ex parte order appointing a receiver.

The action was brought by the purchaser for the specific performance of a contract for the sale of real property. The contract, dated January 3, 1946, is in the form of escrow instructions and calls for the payment of $13,000 in cash by the purchaser and the giving of a trust deed securing a note for $10,000 upon delivery of a deed, together with a policy of title insurance.

[540]The complaint, filed on January 28, 1946, alleges ownership of the property in the defendant; the making of the above mentioned contract; that the agreed purchase price was the fair and reasonable value of the property; that the plaintiff was, and is, able, ready and willing to perform; and that the defendant refuses to perform. The prayer is that she be compelled to specifically perform the terms of the agreement and in the event she refuses so to do that a commissioner be appointed for that purpose. The answer denied the allegation of the complaint as to the value of the property, and set up, as a separate defense, that the defendant had been induced to enter into the contract through misrepresentations made by the plaintiff with respect to the value of the property.

After trial, but before judgment, and on August 21, 1946, plaintiff filed a petition for the appointment of a receiver which led to the order here appealed from, which was entered on the same day. In this petition it is alleged that this action for specific performance had been tried; that a minute order had been entered on August 16, 1946, ordering judgment for the plaintiff; that the findings of fact, conclusions of law and formal judgment were in course of preparation; that the defendant was in possession of the property; that she had sold certain crops on the vines and was in the process of harvesting or would shortly proceed to harvest the same; that she had harvested certain peaches and was then drying the same away from the property in question; and that in order to protect the plaintiff and to carry into effect the judgment it would be necessary to appoint a receiver to take possession of the property, to harvest all crops thereon, and to recover possession of the peaches which had been removed from the real property in question, and which were being dried elsewhere. The order appointing the receiver directed the receiver to immediately take possession of the real property, to harvest and sell all crops growing thereon, and to take immediate possession of the peaches then being dried and which had been removed from the premises in question.