Wong Ah Sure v. Ty Fook

CHIPMAN, P. J.

This is an action to quiet title to certain land, being a portion of section 19, township 12 north, range 8 east, near the town of Newcastle, and for other relief. Defendant filed an answer and cross-complaint: Denied that plaintiff was at the commencement of the action or is now the owner of the land, “except as hereinafter set forth”; denied that defendant claims an interest in the whole of said premises, but avers that he claims an interest in a certain portion hereof (describing it); denied that defendant’s claim is without right. By way of cross-complaint, alleged: That about the •-day of March, 1914, plaintiff and defendant entered into an agreement whereby ‘ ‘defendant agreed to buy and plaintiff agreed to sell the following described land and premises” (description), the consideration being $950, payable four hundred dollars May 20, 1914, and the balance within six months from said last-mentioned date; that defendant went into possession and has ever since been and now is in possession; that about June 22,1914, a store building situated on said premises was partially destroyed by fire; that immediately thereafter it was agreed by plaintiff and defendant that defendant should cause said store building to be repaired ‘ ‘ at the sole expense and cost of plaintiff and the amount of the said cost to be charged against and deducted from said purchase price of said land”; that defendant has paid to plaintiff the entire consideration, to wit: May 20, 1914, paid cash four hundred dollars; July 17, 1914, paid out for cost of repairing said store building, $505; sold and delivered to plaintiff merchandise of the reasonable value of forty dollars, and paid plaintiff the sum of fifty dollars in cash, making in all $995; that defendant has demanded of plaintiff “that he execute and deliver to defendant the said deed conveying said land and premises to defendant in accordance with said agreement,” but plaintiff has refused, and still refuses, to comply with said demand. The prayer is that plaintiff take no relief; that plaintiff be required to specifically perform said contract; that it be decreed that plaintiff has no estate or interest in said premises and

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that he be debarred from asserting any claim in or to said land.

Plaintiff answering the cross-complaint: Denied that plaintiff agreed to sell to defendant the strip of land described in said cross-complaint, except a strip described as follows (description), on which "there was a building and porch of the dimensions heretofore stated of 19x70”; that said agreement "was not in writing but oral and the price to be paid was $950, payable four hundred dollars cash and the balance within a reasonable time thereafter and not to exceed one year, and at said final payment a deed was to be made to defendant”; plaintiff admits that he surrendered possession to defendant and that while defendant was in possession "the upper or wooden portion of said building was destroyed by fire, but for which plaintiff was in no respect responsible or liable”; denied that it was agreed that said building should be repaired at plaintiff’s cost; admitted the payment of four hundred dollars cash, but alleged that plaintiff let defendant "have back” from said four hundred dollars the sum of $175, leaving due $625; denied that defendant sold plaintiff merchandise of the value of forty dollars or any other sum, or at all, and denied that defendant paid plaintiff fifty dollars in cash or any sum in excess of forty dollars; denied that defendant has demanded of plaintiff a deed, and alleged that plaintiff has tendered to defendant a sufficient deed on payment of the unpaid balance of said purchase price. Plaintiff prays that it be adjudged that defendant has no interest in said land and that plaintiff have a vendor’s lien on said premises as security for the payment of said balance due plaintiff.