McCosker v. Fredericksen

PEEK, J. This appeal arises out of an action originally instituted by James M. McCosker, Sr., and his wife against the defendants Fredericksen wherein specific performance was sought of a contract to sell certain real property in Lake County. The Fredericksens cross-complained and sought to quiet their title to the property. Additionally the Frederick-sens instituted a second proceeding against Stanley McCosker as administrator of the estate of James M. McCosker, Sr., and his wife by which the Fredericksens sought to eject and oust the McCoskers from the property. The McCoskers cross-complained and again asked for specific performance of the contract upon which they had relied in the previous action. The two cases were consolidated for trial, and at the conclusion thereof judgment was entered in favor of the Mc-Coskers, decreeing specific performance of the contract.

This is the third appeal which has been before this court in[491]volving the same parties and the same property. The controversy originally stems from a contract of purchase entered into in September of 1944 wherein James M. McCosker, Jr., and his wife agreed to buy, and Bert R. Hand and his wife agreed to sell for $16,000 the property involved herein. This agreement is referred to by all of the parties as the Hand contract. Under the terms of that contract the purchasers made a down payment of $6,000 and agreed to pay the balance of $10,000 on or before seven years from the date thereof, or September 5, 1951. Thereafter, on April 16, 1946, the Hands discounted the contract, assigned their interest thereunder to the Fredericksens for the sum of $8,000, and executed a deed of the property to the Fredericksens subject to their contract with the McCoskers, junior. Subsequently James M. McCosker, Sr., and his wife brought an action against the McCoskers, junior, which resulted in a judgment decreeing the McCoskers, senior, to own an undivided one-half interest in the property and awarding damages of more than $9,000 pursuant to an accounting concerning the profits taken by the McCoskers, junior. That judgment was affirmed by this court in 122 Cal.App.2d 498. An abstract of judgment in that case was recorded on August 28, 1951. On September 27, 1951, the McCoskers, senior, purchased at a sheriff’s sale all of the interest of the McCoskers, junior, in the Hand property.

On October 2, 1951, the Fredericksens instituted a quiet title action wherein the McCoskers, junior, and several fictitious persons were named as defendants, but only the McCoskers, junior, were served. The McCoskers, senior, made an abortive attempt by answer to become parties to that action by appearing therein as two of the fictitious persons named as defendants and set forth their claim to the property and alleged tender of the balance due. The Fredericksens demurred to said answer and later, at the time of trial, dismissed the action as to them. The McCoskers, junior, defaulted, and judgment was entered in favor of the Fredericksens.