North Confidence Mining & Development Co. v. Morrice

BURNETT, J.

The action was brought to cancel a certain option or agreement for the sale of real property, and plaintiff had judgment from which the appeal is taken upon the judgment-roll. The instrument which the court ordered canceled, as far as necessary to quote, is in the following form:

“This agreement made and entered into this 3rd day of June, 1919, by and between North Confidence Mining and Development Company, a corporation, the party of the first part and George Morrice, of the County of Tuolumne, State of California, the party of the second part witnesseth: That for and in consideration of the premises, the party of the first part hereby gives and grants unto the said party of the second part, his heirs, executors, administrators and assigns

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an option to purchase all that certain mining property situate, lying and being in the County of Tuolumne, State of California, and more particularly described as follows, to-wit:

“All of those certain lots, pieces and parcels of land situate, lying and being in the County of Tuolumne, State of California, and bounded and particularly described as follows, to-wit: [describing it].

“Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, and the rents, issues and profits thereof.

“For and at the agreed price and sum of Thirty Thousand and no 100 Dollars, ($30,000.00) Gold Coin of the United States payment therefor to be made as follows:

“1st payment June 30th, 1920, $5,000.00.

“2nd payment June 30th, 1921, $5,000.00.

“3rd payment June 30th, 1922, $5,000.00.

“4th payment December 30th, 1922, $5,000.00.

“5th payment June 30th, 1923, $5,000.00.

“6th payment December 30th, 1923, $5,000.00.

“The purchase price of said property shall be and the same is hereby fixed at Thirty Thousand and no 100 Dollars ($30,000.00) no part of the said purchase price is to draw any interest, and no installment is to draw interest until after the maturity of that particular installment, after which time said installment shall bear interest at the rate of seven per cent per annum until paid.” Then follow other terms as to possession, the use of the growing timber, the payment of royalty for all quartz and gravel mined during the term, the disposition of any buildings that might be erected by the party of the second part and that “this option to purchase is subject to the surface rights granted as a right of way” for a certain railroad.