§ 451. COMPLAINTS [OR PETITIONS]. FORM No. 1055-For specific performance of an agreement to make a lease. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That on the day of 19 the defendant, being owner in fee of the following premises [describing the same], duly executed an agreement with the plaintiff, whereby he agreed to lease the same, with the appurtenances, to the plaintiff, for the term of years, from the 19 on the following day of conditions: [Set out the same.] 2. That the plaintiff, relying upon said agreement, has expended the sum of $ in improving said premises, in this: [State what improvements were made.] 3. That the plaintiff has duly performed all the conditions on his part to be performed, and has always been, and still is, ready and willing to accept a lease of said premises, but the defendant has failed and refused, and still refuses, to execute a lease to the plaintiff. 4. That said contract, and the terms and conditions thereof aforesaid, were and are in all respects just and fair and reasonable between the parties thereto. Wherefore, the plaintiff demands judgment, that the defendant be required to execute to the plaintiff a lease, according to the terms of said agreement, and for such other relief as is just and proper. A. B., Attorney for plaintiff. [Verification.] FORM No. 1056-For specific performance of an agreement to exchange property. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: day of day of 19 at 1. That on the , the plaintiff and defendant entered into an agreement, in writing, of that date, whereby, in consideration of the covenants on the part of the plaintiff hereinafter mentioned, the defendant covenanted that he would, on or before the 19 , convey to the plaintiff in fee, by warranty deed, a tract of land situated in the county of , in the state of , bounded and described as follows [giving description]; in consideration whereof, the plaintiff covenanted in and by said agreement to convey to the defendant in fee-simple a certain day of 2. That the plaintiff duly performed all the conditions of said. agreement on his part, and on the 19 at tendered to the defendant a warranty deed of said premises, signed and sealed by the plaintiff, and demanded of him a deed of said premises in but the defendant refused to execute and deliver said or any deed to the plaintiff. ; 3. [As in paragraph 4, preceding form.] day of 4. That on the 19 in pursuance of said agreement, the plaintiff delivered, and the defendant took, possession of the premises so to be conveyed to the defendant, and that defendant has ever since occupied, and now occupies, the same. Wherefore, the plaintiff prays judgment, that the defendant convey to the plaintiff said lot in , pursuant to the contract, and for the costs of this action. [Verification.] A. B., Attorney for plaintiff. FORM No. 1057-By vendee, to compel specific performance of contract to convey real estate under which possession was given. (In Noyes v. Schlegel, 9 Cal. App. 516; 99 Pac. 726.)1 [Title of court and cause.] Comes now the plaintiff above named, and for cause of action against the defendants, alleges: 1. That on the 24th day of February, 1904, the plaintiff and the defendant L. Schlegel entered into a certain contract and agreement, in writing, whereby said defendant agreed to sell and transfer to this plaintiff certain lots, pieces, and parcels of land situate in the county of Los Angeles, state of California, and more particularly described as follows, to wit: [Here follows description of said property], for the sum of $625, gold coin of the United States, payable in instalments as provided in said contract. A copy of the said agreement of February 24, 1904, is hereunto attached, marked "Exhibit A," and made a part hereof. * 1 This action involved, in addition to property wholly paid for, certain other lots upon which instalments remained unpaid. The defendant contended that he was released from his obligation to convey because the plaintiff had failed to pay some of the instalments within the time limited by the contract. The court held that the defendant had, by express oral agreement, and by the acceptance of overdue payments, and in other ways, waived his right to forfeiture for these defaults or delays in payment: Noyes v. Schlegel, 9 Cal. App. 516, 99 Pac. 726, 727. 2. That thereafter, and on the 12th day of July, 1906, the said agreement was duly recorded in the office of the county recorder of the county of Los Angeles, in book 726 of deeds, at page 267 thereof, records of said county. 3. That pursuant to the said agreement the plaintiff went into possession of the said property, and is now in possession thereof, and that plaintiff has made all of the payments on account of the purchase price of [said] lots above described, provided in the said contract to be paid, together with interest on said payments as provided therein. That demand has been made upon the said defendant that he execute and deliver to this plaintiff the deed of conveyance to said lots pursuant to his said contract with plaintiff, but said defendant has refused, and still refuses, to execute the necessary deed of conveyance to the said property, and refuses to carry out his said agreement in reference to the transfer of said lots or either of them. A copy of said demand in writing so served upon the said defendant is hereunto attached, marked "Exhibit B," and made a part of this complaint. * 4. That the said agreement of February 24, 1904, was and is a just and equitable contract as between plaintiff and said defendant, and the price therein agreed to be paid by the plaintiff for said lots was the reasonable value thereof at the time the said contract was entered into, and the said contract, at the time of its execution, was, and it now is, a just and equitable and reasonable contract. 5. * That the said defendant at all times herein mentioned was, and now is, the legal owner of the title to the said premises above described, and was, and now is, able to transfer to the plaintiff a good and sufficient title to the same; that the defendant Harriett Schlegel is the wife of L. Schlegel, and has, or claims to have, some interest in the said premises, and that said interest is subject to and inferior to the rights of the plaintiff herein; that the defendants John Doe, Richard Roe, Mary Doe, and Jane Roe are sued herein under fictitious names, because the true names of said defendants are unknown to plaintiff; that said last-named defendants have, or claim to have, some interest in the said premises adverse to plaintiff, and plaintiff asks that when their true names are ascertained that he may be allowed to amend his complaint by inserting the same herein. Wherefore, plaintiff prays judgment and decree of this court: That the defendant be required to execute to this plaintiff a good and sufficient deed to the said property free and clear of all encumbrances, and that upon a refusal to so execute and deliver said deed a commissioner be appointed by this court to execute such deed, and that such transfer shall operate as a transfer to plaintiff of said premises; that it be adjudged and decreed, that plaintiff is the owner in fee-simple of the said premises, free and clear of all encumbrances, and that defendants and each of them be restrained and enjoined from asserting any right, title, or interest therein or thereto; and for such other and further relief as may be just and equitable, and for costs. [Verification.] Kemp & Collier, Attorneys for plaintiff. FORM No. 1058—Against administrator of vendor's estate, for specific performance of contract made with decedent. (In Carr v. Howell, 154 Cal. 372; 97 Pac. 885.) [Title of court and cause.] Now comes the plaintiff in the above-entitled action, and complaining of the defendant, for cause of action alleges: 1. That Lelia Dwyer died at the city of New Orleans, in the state of Louisiana, on or about the 22d day of June, 1905, and was at the time of her death a resident of the said city and state, but left real property situated in the city of Los Angeles, county of Los Angeles, state of California. 2. That the said Lelia Dwyer left a will, and prior to the 8th day of August, 1905, the defendant, Wesley Clark, presented his petition to this court, praying that the said will be admitted to probate, and that he, the said Wesley Clark, be appointed administrator of the estate of the said Lelia Dwyer with the will annexed, and such proceedings were had upon the said petition in this court that on the 8th day of August, 1905, an order was duly given and made in this court and in the said proceedings, admitting the said instrument to probate, and appointing the said defendant, Wesley Clark, administrator of the estate with the will annexed, and the said Wesley Clark did thereafter, and on the 9th day of August, 1905, duly qualify as such administrator by giving the bond and taking the oath required by law, and thereupon letters of administration of the estate of the said Lelia Dwyer with the will annexed were duly issued to him, said Wesley Clark, and he, the said Wesley Clark, ever since has been, and now is, the duly appointed, qualified, and acting administrator with the will annexed of the said Lelia Dwyer, deceased. 3. That during the lifetime of the said Lelia Dwyer, and on or about the 4th day of March, 1905, she was the owner of the followingdescribed parcel of land: [Here follows description of land]; and that she died seized of the said land (subject to the written agreement hereinafter set out). 4. That on or about the 4th day of March, 1905, plaintiff and defendant entered into a certain agreement, in writing, which agreement was and is in words and figures following, to wit: [Here the said agreement is set out.] * 5-8. Plaintiff further alleges that he paid to the said Lelia Dwyer, upon and under and in pursuance of said contract, the said sum of $1,000, as part payment for said tract of land, as recited in said. agreement; and prior to the 13th day of May, 1905, to wit, on the 26th day of April, 1905, plaintiff offered to pay unto the said Lelia Dwyer, and tendered to her, the further sum of $9,000, in cash, and did at the same time offer to deliver the six promissory notes signed by the plaintiff, each in the sum of $15,000, due respectively on or before one, two, three, four, five, and six years, payable to the said Lelia Dwyer, or her order, [etc., stating the offer to perform the remaining conditions of the contract on the part of the plaintiff to be performed]; that plaintiff then and there was, and ever since has been, and now is, able, ready, and willing, and now offers, to pay all sums of money by him to be paid under the terms of the said written agreement and to deliver the notes and mortgage required thereby to the said defendant upon the execution of the deed of conveyance to the plaintiff as provided in the said agreement [etc.]; but the said Lelia Dwyer failed and refused and neglected to [accept said tender] or deliver such conveyance. 9. [Here follows averment as to tender made to the representative after his appointment and qualifying aforesaid.] 10. Plaintiff further avers that the said sums of money agreed by him to be paid for the said property as in the said contract of March 4, 1905, set forth, and amounting altogether to the sum of $100,000, |