Eichholtz v. Nicoll

[68]

MARKS, J.

This is an appeal from a portion of a judgment ejecting defendant from real property in Bishop, in Inyo County, and ordering specific performance of a contract in which plaintiff had agreed to sell the property to defendant for $2,000. Only the portion of the judgment decreeing specific performance is before us for review so we need devote no time to the other.

The complaint alleged that plaintiff was the owner of the property. This was admitted by the answer and found to be true by the trial court.

Under date of September 1, 1942, plaintiff and defendant entered into a contract leasing the property to defendant at the monthly rental of $30. It contained the following provision:

“For and in consideration of the sum of one dollar, receipt whereof is hereby acknowledged, lessor does give and grant unto lessee the exclusive right and option to purchase the demised premises for the full purchase price of two thousand dollars ($2,000.00) cash. The time within which said action may be exercised by lessee shall begin at the date hereof and continue thereafter until the expiration of thirty days following such time as lessor is enabled to deliver to lessee a policy of title insurance, showing title to be vested in him free and clear of all incumbrances. Lessor does promise and agree that he will use due diligence to secure title such as to enable him to deliver the same free and clear of all encumbrances and that as soon as he is able to do so, he will notify lessee in writing, and that said option to purchase may be exercised at any time within thirty days following receipt of such notification by lessee.”

There is evidence that defendant was at all times ready, willing, able and anxious to purchase the property; that several times she requested a deed to it, and once, prior to the institution of this action, offered to pay plaintiff the purchase price; that he said he could not convey it because of some litigation over the title.

This action was filed in August, 1943. Defendant answered and filed a cross-complaint asking specific performance. She deposited $2,000 in court to be paid to plaintiff.

The trial court decreed that plaintiff convey the property to defendant within thirty days after the entry of judgment, or, upon his failing to do so, that the clerk of the court execute such a deed for him.