Womble v. Wilbur

Upon the rehearing we discover nothing to justify a different conclusion from that heretofore reached.

For the reasons in our former opinion stated and also for the reasons set forth in the opinion in the same case, numbered 206, post, p. 535, the judgment is affirmed.

Buckles, J., and McLaughlin, J., concurred.

Case No. 206, above referred to, immediately follows the decision in this case, and the following is the former opinion heretofore rendered in this case, March 1, 1906:

This is an action to annul a certain agreement of sale of certain mining land between plaintiff John T. Womble and defendant Wilbur; also to cause to be delivered up to said plaintiff and canceled a certain deed made by him to said Wilbur and alleged to have been placed in escrow with defendant bank under said agreement; also for a certain sum as rentals for the use of said land, and for attorneys' fees.

The court gave judgment: That the defendant bank deliver forthwith to defendant, Braddock, the deed in question, as assignee of defendant, Wilbur, and also the deed of Wilbur to Braddock; that plaintiffs recover judgment from defendant bank for the sum of $5,625.00, being the amount of the last payment due plaintiffs on account of said sale, which had been deposited to plaintiffs' credit by said Braddock; that plaintiffs recover from defendant Wilbur the sum of $2,151.00 as interest, less $300.00, rentals due him from plaintiffs; and that defendants, the bank and Braddock, recover their costs.

Defendant Wilbur appeals from the judgment on the judgment-roll alone.

It was alleged in the complaint that Womble and Wilbur entered into an agreement on May 24, 1900, by which the *Page 529 former agreed to sell to the latter the land in question for the sum of $30,000.00, "payable in installments as follows: July 10, 1900, $1,875.00; January 10, 1901, $3,750.00; July 10, 1901, $3,750.00; January 10, 1902, $3,750.00; July 10, 1902, $3,750.00; January 10, 1903, $3,750.00; July 10, 1903, $3,750.00; January 10, 1904, $5,625.00." It was further provided: "On the signing of this agreement, the party of the first part agrees to execute a good and sufficient deed of conveyance of the property . . . and deposit the same in escrow with some bank at the city of Stockton, California, with instructions to said bank to deliver said deed to the party of the second part upon payment by him of all the installments of the purchase money hereinbefore provided for, provided that any and all installments remaining unpaid on the tenth day of July, 1901, shall thereafter bear interest at the rate of six per cent per annum, said interest to be payable on the tenth day of July, each year; and provided further, that if any of the installments of the purchase money shall remain unpaid for sixty days after it shall become due, the said party of the first part shall have the right and privilege of withdrawing said deed from escrow, and terminating this agreement, in which event the party of the second part shall forfeit all payments that have been previously made. The installments of purchase money hereinbefore provided for shall be payable at the said bank with which said deed in escrow shall be deposited, to the order of the first party." The agreement gave to Wilbur the right to enter into possession of the property, sink shafts, run tunnels and to extract ore and retain the proceeds, Womble retaining the right to use the agricultural portion of the land, for which he was to pay as rental the sum of $150 per annum, payable in advance. The agreement ran to the heirs and assigns of the respective parties. It was alleged in the complaint that said Womble delivered to defendant bank his deed as provided in said agreement and "thereupon instructed said bank orally and in writing, to hold said deed in escrow until the fulfillment or forfeiture of said contract on the part of the said I. R. Wilbur and not to deliver said deed unless all the moneys were paid to plaintiffs at the time and in the manner specified in said contract"; and alleged the said bank had knowledge of the contents of said agreement and accepted the trust *Page 530 of holding said deed in escrow for the purposes in the complaint alleged. The court found that this agreement was entered into on the day of its date, but that the defendant bank knew nothing of its contents or existence and accepted the escrow under an agreement thereafter and on the same day entered into between Womble and Wilbur as set forth in the answers. This agreement is as follows: