Empfield

Petitioners (the Empfields and Powells) sold an apartment house to the real parties in interest (the Spickas) taking as down payment a parcel of unimproved real property. The Spickas allegedly failed to make payments on trust deeds on the apartment house and, petitioners brought an action for foreclosure of a deed of trust which named them as beneficiaries. The Spickas filed a cross-complaint for rescission or reformation of the transaction, alleging fraud on the part of a real 'estate salesman and imputing liability to petitioners as principals. On 7 February 1973 the Spickas recorded a lis pendens against the real property given to petitioners as a down payment. Petitioners,'who had constructed houses on the real property and had arranged for their sale., discovered the lis pendens on 1 April 1973. They filed a notice of motion to expunge the lis pendens, alleging that their sales would be lost if the lis pendens remained of record. The superior court denied their motid'h.

The relevant provisions of the Code of Civil Procedure provide: “§ 409. In an action concerning real property or affecting the title or the right of possession of real property, the plaintiff, at the…