Security Trust & Savings Bank v. Southern Pacific Railroad

BISHOP, J., pro tem.

The specific performance of a contract executed in 1885 was decreed in a judgment entered in this action in 1928. By the terms of the judgment the real property involved was to be conveyed by the defendant Southern Pacific Land Company to the plaintiff upon the payment of $31,895.23. It was also provided that if the conveyance was not made within thirty days after the same became final, upon deposit of the sum mentioned the county clerk, as commissioner of the court, should execute a deed. No time was fixed within which the plaintiff was to offer to make payment of the sum of $31,895.23. On an appeal, taken by the defendants, this judgment was affirmed, the opinion making no mention either of the provisions or lack of provision to which we have referred.

(Security Trust &

[422]

Sav. Bank

v.

Southern Pac. R. R. Co.,

(1931) 214 Cal. 81 [3 Pac. (2d) 1015].)

After the Supreme Court’s decision the defendants sought an order fixing a definite time within which the plaintiff would either have to pay the money specified by the decree, or lose its benefits, and when their motion was denied, they appealed. The question on appeal, as framed by the court itself in

Security Trust & Sav. Bank

v.

Southern Pac. R. R. Co.,

(1935) 6 Cal. App. (2d) 585 [45 Pac. (2d) 268], was ‘ ‘ should the trial court have rendered its decree more certain by specifying a reasonable time within which the plaintiff would be required to tender the money specified in the judgment so as to entitle it to specific performance of the contract?” The question was answered in the affirmative, the judgment being (p. 590) : “The order' is reversed, and the court is directed to fix a reasonable time within which the purchase price of the land shall be tendered by the plaintiff, on penalty of vacating the decree for failure to comply therewith. ’ ’

The present appeal by the plaintiff is from the order which the District Court of Appeal had directed, and which the trial court entered in these words: “Now, therefore, it is hereby ordered that Security First National Bank of Los Angeles, as successor to plaintiff above named, pay unto the defendant Southern Pacific Land Company, or deposit in court for said defendant within 60 days after service of a copy of this order, the sum of $31,895.23, upon the terms provided in the decree herein; and it is hereby further ordered that upon failure of said Security First National Bank of Los Angeles to make said payment or said deposit with the clerk of this court within the time aforesaid, the said decree made herein on the 4th day of June, 1928, will be vacated and set aside.