Rohl v. Van Cleve

GOODELL, J. Appellants sued to quiet title to a piece of improved real property in Daly City. Judgment went in favor of defendants, quieting the title of respondent Home Development Company, and this appeal was taken.

When the property was acquired by respondent Van Cleve she borrowed $4,200 from respondent Cassaretto and gave a deed of trust which was recorded on January 23,1945. Early in July, 1945, negotiations were opened between respondent Van Cleve and appellant Prances Rohl for the sale of the property to the latter. These negotiations were carried on principally by respondent Del Secco, a real estate broker representing respondent Van Cleve, and eventuated in a contract of sale dated July 10, 1945, signed by appellant Prances Rohl and respondent Van Cleve. The contract clearly states the selling price as $6,000, and that a down payment of $2,000 was to be made. It shows on its face that such payment was made, $100 thereof on July 10th, $1,000 on the 14th, $500 on the 18th and $400 on the 21st.

On August 2, 1945, a grant deed to appellant Prances Rohl was recorded and appellants went into possession. Respondent Van Cleve kept up her payments on the $4,200 indebtedness until the time of the Rohl sale, but then discontinued them. No further payments were made by appellant Frances [319]Rohl or anybody else, and on May 15, 1946, a notice of breach was recorded by respondent Cassaretto, followed by a notice of sale, fixing the sale date for September 27, 1946. On that day the property was bid in by respondent Cassaretto for $4,000 which was the balance remaining unpaid. On October 4, 1946, she conveyed to respondent Home Development Company, which later brought an unlawful detainer action in which appellants defaulted and on January 20, 1947, the sheriff evicted them in execution of the judgment.

About a month later this suit was brought, at which time appellants had neither title, possession, nor right of possession. At the oral argument appellants conceded that in suing to quiet title they had mistaken their remedy. Their position on this appeal is that although they chose the wrong remedy, their complaint was nevertheless sufficient to entitle them to a judgment for damages.

In addition to the usual allegations of a quiet-title suit the complaint alleged (all in one count) that defendants ousted plaintiffs from the premises; “that said ouster was fraudulent and malicious and was done in pursuance of a civil conspiracy” whereby defendants Del Seceo, Van Cleve and Cassaretto “stated and represented to the plaintiffs before the purchase of said property, and for the purpose of inducing the plaintiffs to purchase . . . that plaintiffs could, and would, obtain title to said triangular piece of property, free and clear, for the total purchase price” of $2,500 and that none of the respondents disclosed to plaintiffs that the property was encumbered by a deed of trust for $4,200 or any other sum; that, relying on such representations, they purchased the property as a cash transaction without investigating the title, and suffered damages in the sum of $3,000.