140 Cal. App. 5 | Cal. Ct. App. | 1934
The petitioner filed a complaint in the superior court asking partition of a single piece of real property with a dwelling-house thereon and setting forth that she was the owner of an undivided one-eighth thereof as a tenant in common in fee simple and that the defendants named in the complaint owned together the other seven-eighths in common with the plaintiff. The answer of the defendants therein admitted the material allegations of the complaint and pleaded as an affirmative defense that a present sale of the real property would be unwise because of the present depressed condition of real property values. The plaintiff thereupon moved for judgment on the pleadings and, her motion having been denied, she seeks the mandate of this court to require the respondent court to grant her motion.
In support of her petition the petitioner cites Rich v. Smith, 26 Cal. App. 775, 783 [148 Pac. 545], to the effect that a defendant in partition is not entitled to a postponement of the sale merely to obtain a possible increase in the market price of the property and argues that, for this reason, the answer of these defendants sets up no triable issue. The Rich case states the accepted rule and, on the
On the authority of Allyne v. Superior Court, 200 Cal. 661, 666 [254 Pac. 564], the petition herein is insufficient to warrant the issuance of the writ.
The petition is denied.
Sturtevant, J., and Spence, J., concurred.