Ogle v. Hubbel

Unlawful detainer. One Barbara Hubbel, mother of C. P. Hubbel, was the owner of the demised premises, and on October 18, 1899, leased the same to the defendant. The lease was for five years, with right of renewal for five years, the term to commence on the day of its execution; the rental being twenty-five dollars per month, payable monthly in advance on the first day of each month. It was further provided that the lessor “may sell said premises during the continuance of this lease either subject to the terms hereof or that such sale may terminate and determine this lease within one year after notice of said sale, but it is understood that said party of the second part [lessee] may always have the preference as purchaser in case of sale.”

Defendant entered under the lease and paid rent agreeably thereto until and including the month of April, 1902. On April 29, 1902, Barbara Hubbel executed a conveyance of the premises to plaintiffs by bargain and sale deed, which was duly recorded April 30, 1902, and on that day they served written notice on defendant that they had purchased the premises, and that they “wish to obtain possession of said premises as soon as they can be vacated by you. ’ ’ On' May 22, 1902, plaintiffs served upon defendant written notice requiring him to pay rent to them, being twenty-five dollars for the month of May, 1902, “or deliver to us the possession of all of said premises in three days from the time of service upon you of this notice.” Defendant failing to pay rent, plaintiffs filed their verified complaint June 13, 1902, alleg

By way of an equitable defense to said action and as a cross-complaint defendant alleges the execution of the lease and his performance of all the conditions thereof on his part to be performed; that his lessor, “in order to oust defendant from said premises, fraudulently, and without consideration, transferred said property to . . . plaintiffs herein, on or about the 29th day of April, 1902”; that plaintiffs took said deed with full knowledge of defendant’s rights under said lease and his right to purchase said property, and well knew that said deed was made “to oust defendant from said premises”; that defendant “has always been able, willing, and anxious to buy said property from said Barbara Hubbel . . . That she has refused to place a cash price upon said premises so that defendant could purchase the same and she still refuses and neglects to do the same.”

There was no demurrer to the answer or cross-complaint, and the trial proceeded, the court sitting as a jury.

The court found that the lease was executed as above stated; that defendant entered into possession and has ever since been in possession under it; that he has never refused to pay rent to said Barbara Hubbel; that she refused to accept rent after April 29, 1902; and that ever since that time defendant has been able, ready, and willing to pay said rent to said Barbara Hubbel, “and has proffered the same to her, but she has refused to accept the same or any part thereof”; that on April

As conclusions of law the court found that plaintiffs are not the owners of the demised premises; that they are not entitled to rents; that defendant is rightfully in possession; that he has not broken the terms of the lease; and that neither of plaintiffs has any right, title, or interest in the premises.

Judgment passed against plaintiffs, and each of them, “that all adverse claims of the plaintiffs and each of them to said premises or any part thereof are invalid and groundless; that defendant be and he is hereby declared and adjudged to be entitled to the lawful and peaceful possession of said premises and every part thereof.” From this judgment and the order denying plaintiffs’ motion for a new trial they appeal.

Plaintiffs claim that their title was not an issue and could not be tried in this form of action and that the evidence is insufficient to justify the decision, for the reason that there is no evidence that defendant either paid or offered to pay any rent to plaintiffs after April 29, 1902, the date of their alleged purchase of the premises. Defendant does not deny that he paid no rent to plaintiffs; he not only refused to attorn to plaintiffs, but denied their right to demand or receive rent, and denied their alleged ownership of the premises-demised. His conteption was and is, that the conveyance to plaintiffs by his lessor was fictitious and fraudulent, and there

In Mason v. Wolf, 40 Cal. 246 , it was said that “the consequences of entering into the contract can only he avoided by showing some fraud or mistake which would have been sufficient to set aside the lease itself.” In Johnson v. Ohely, 43 Cal. 299 , the action was unlawful detainer under the act of 1862 (Stats. 1862, p. 652) to recover premises from a tenant holding over after demand of rent due, and failure to pay for the space of three days. Defendant, among other defenses, alleged that the lease sued upon was procured through fraud. The trial court refused to permit defendant to prove that he was already in possession of the premises when he agreed to become the tenant of the plaintiffs, and that they induced him to assume the relation of tenant to them by their fraudulent misrepresentations that they were the owners of the premises. After showing that in ejectment the defendant is permitted to show fraud, and is not estopped to dispute his landlord’s title where he did not enter under the lease, and that the landlord cannot throw him out by mere force of such a lease, the court said: “That the same result must follow so far as the defendant is concerned in an action of unlawful detainer in which a lease relied upon to establish the relation of landlord and tenant is shown to have been obtained under such circumstances as would not have estopped the tenant from disputing the title of the landlord in a court in which the title could be tried. ’ ’

In Knowles v. Murphy, 107 Cal. 107 , [ 40 Pac. 111 ], one of the issues presented by the defendants was, that they were

We cannot doubt that had the action been unlawful detainer to dispossess the tenant under pretense of sale he could have successfully defeated it by showing the sale to have been fraudulent and for the purpose of ousting him.

In the case of Simon Newman Co. v. Lassing, 141 Cal. 174 , [ 74 Pac. 761 ], the action was unlawful detainer. Defendant conveyed the property to plaintiffs and subsequently gave plaintiffs a note for $936, in consideration of which plaintiff agreed that defendant might remain in possession one year. To plaintiff’s complaint defendant answered that the deed was executed and the agreement for possession was made through the false and fraudulent representations of plaintiff. At the trial defendant had the verdict, and the trial court, on plaintiff’s motion, granted a new trial. In the course of.the opinion on appeal, the court said: “Respondent contends, as we understand the brief of counsel, that defendant is estopped

In the case now here, the lease was not originally procured by fraud, but the effect of the findings is, that plaintiffs now hold it in defraud of defendant’s rights, through the acts of defendant’s lessor and her grantees, and that they are seeking to enforce it to his detriment.

So far as plaintiffs are concerned, the lease in their hands is found to be tainted with fraud, because the deed, by force •of wMch alone the plaintiffs claim under the lease, was fraudulent and void. That evidence was admissible to establish the facts found we entertain no doubt, in view of the principles enunciated in the foregoing eases. The remaining question then is, Was the evidence sufficient to justify the findings ?

Mrs. Hubbel, on February 14, 1902, wrote defendant informing Mm that she had an opportunity to sell the premises for mneteen hundred dollars cash and forty-five hundred dollars payable in four years, with interest at eight per cent, compounded yearly, and secured by mortgage on the land, and unless she received from Mm the above or á better offer before March 1, 1902, she would accept the offer above mentioned and sell the property upon the said terms. On Febru

Without further notice to defendant, she executed the deed to plaintiffs above mentioned. Plaintiff Ogle testified that for his half-interest he paid one thousand dollars in cash and delivered his note secured by mortgage on the premises for $2,250, payable four years after date, at eight per cent interest. Plaintiff Hubbel testified that he gave his note to Mrs. Hubbel for $2,250, payable one year after date, at eight per cent interest, without security. He testified that at various times in previous years he had deposited with his mother four hundred dollars, which she allowed as a payment on the purchase, and that she made him a present of five hundred dollars, and that he had paid about one hundred dollars on the note since the transaction. These items aggregate sixty-five hundred dollars. The undisputed evidence was, that the market value of the premises was not to exceed three thousand dollars, some witnesses placing it at twenty-five hundred dollars; that defendant was able and willing to purchase the property at its reasonable or market value; that plaintiff Hubbel was without means, and that his expectations to meet his note were that he would earn the money or obtain renewal of the note. Mrs. Hubbel did not testify, and the court had only the testimony of plaintiff Hubbel as to what he paid for his interest in the property. Some facts were brought out from which the court was no doubt led to discredit the testimony of plaintiff Hubbel, and which tended to show that the sale, if meant to be binding at all, was for about half the

The contention of appellants that Mrs. Hubbel had the right to give away a half-interest in the property to her son, if she wished to do so, is not consistent with respondent’s rights under the lease. The lease contemplated a bona fide sale before defendant could be deprived of his rights under the lease. It may be that the lessor had the right to make a sale to some one wdlling to give more than, the market value, and that defendant would be obliged to pay this sum if he wished to purchase, but in any event the sale would have to be “an actual bona fide sale and not a fraudulent one.” (Davis v. Schweigert, 130 Cal. 143 , [ 62 Pac. 411 ].) It may also be that the lessor had the right to convey the property by gift to her son, but such a conveyance would not have terminated the lease or have affected defendant’s rights under it; he would still have the right of purchase in case of a sale during the life of the lease.

But the court found that the conveyance here was a fraudulent one, and in effect found that the consideration to be paid by plaintiff Hubbel was pretended and fictitious, and was designed to so increase the price to defendant that he would not buy, while Mrs. Hubbel was at the same time receiving all the property was worth in the market. The undisputed fact, on plaintiff’s own showing, was that she did not dispose of the property upon the terms she wrote defendant she was offered for it.

Plaintiffs contend that defendant’s rights were not prejudiced by the conveyance, because he had the same remedies against them, as grantees, as he had against his lessor. This might be true had defendant declined to purchase after notice of a bona fide offer of purchase by some other person. But he was deprived by this pretended sale of the important privilege to purchase which the lease gave him. He could not attorn to plaintiffs without recognizing the validity of their purchase and their right to terminate the lease and deprive him of the balance of his term.

But this is not an action to specifically enforce the contract; defendant does not seek affirmative relief; he seeks merely to prevent the perpetration of a fraud upon his rights. (Simon Newman Co. v. Lassing, 141 Cal. 174 , [ 74 Pac. 761 ].)

If, as was found, by the court, the deed was made for the fraudulent purpose shown, the court was justified in finding that plaintiffs were not damaged. It was not necessary for the court to find that defendant refused to pay rent to plaintiffs, in view of its findings as to the fraudulent nature of the transaction. Nor do we think the findings contradictory, in that the court found that the property was conveyed to plaintiffs by Mrs. Hubbel, and elsewhere that plaintiffs had no title. The findings plainly show that the court did not regard the conveyance as valid, though in fact executed.

Under the issues, it was competent for defendant to show ability and willingness to purchase the property at its fair market value. He was not bound to pay her a sum fictitiously or fraudulently named to him as offered by another person. It was not prejudicial error' for defendant to show that he had offered to pay rent to his lessor and that she had refused to accept it. Under the circumstances of the ease, and his lessor not being a party, it was perhaps unnecessary for him to show an offer to pay his lessor. If plaintiffs had shown themselves to have been bona fide owners of the property, an offer to pay rent to their grantor would have been no defense. This, however, was not the case, and the evidence was harmless. It was not error to allow proof of plaintiff HubbePs financial condition as bearing upon the issues presented and as tending to contradict his testimony.

The judgment and order are affirmed.

McLaughlin, J., and Buckles, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on August 22, 1905, and a petition to