Twisselmann v. Cohn

MARKS, J.

This is an appeal from a judgment decreeing specific performance of a contract to sell certain real property in San Luis Obispo and Kern Counties.

Defendant was the seller and plaintiffs were the

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buyers. On June 24, 1941, plaintiffs signed buyers escrow instructions addressed to the Title Insurance and Trust Company proposing to purchase the property for $4,250, which amount they deposited with the instructions. These instructions carefully detailed the terms and conditions of purchase. At the same time defendant signed and filed with the same company her instructions, which contained the following:

“I have read and approved the foregoing instructions. I will hand you Deed as called for which you will deliver when you can issue the policy of title insurance called for and obtain for me the sum of $4,250.00. The foregoing GENERAL PROVISIONS are hereby incorporated in these instructions. ...” The “general provisions” referred to were part of the buyers’ instructions.

Defendant deraigned title to the property from the estate of Charles M. Cohn, deceased, by means of _ a decree of partial distribution. She was entitled to a 45 per cent interest in the entire estate. When the title search to the property was being made it was discovered that the decree of partial distribution described one of the three tracts which defendant proposed to sell, as being in Section 28, Township 28 South, Range 22 East, M. D. B. & M., which Charles M. Cohn had not owned, instead of being in Section 8, Township 28 South, Range 22 East, M. D. B. & M., which was the proper description.

Under date of July 10, 1941, defendant wrote Christian Twisselmann the following letter:

“I find I cannot deliver you a clear title to the Jerry Slough property. Clearing the title will necessitate legal steps which will take quite some time, for this reason I am terminating the escrow. Please note my new address.”

On July 15, 1941, Twisselmann wrote defendant as follows :

“Your letter receieieved I gave the Abstract Company instruction to except the title too that land in sec 8 at it as it is not worth anything anyway.”