Tucker v. Newton

McLUCAS, J.,

pro

tem.

This is a suit for specific performance of an agreement to exchange real property. Plaintiffs appeal from the judgment rendered for defendants.

The complaint alleges that on the fourth day of March, 1922, plaintiffs and defendants entered into . an agreement for exchange of properties and to take immediate possession of the properties exchanged, and further agreed that the property of plaintiffs should be conveyed to defendants subject to a mortgage of $4,250, and that the property of defendants should be conveyed to plaintiffs free from all encumbrances; that the plaintiffs, in addition to the conveyance of their property, should pay the defendants the

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sum of $4,250, and that the defendants, in addition to the conveyance of their property, should pay to the plaintiffs the sum of $2,000; that thereafter plaintiffs and defendants entered into possession of the properties so agreed to be exchanged, and plaintiffs had conveyed their property to defendants; that defendants have not conveyed, or offered to convey, their property to plaintiffs, free and clear of encumbrance, nor have they paid or offered to pay to plaintiffs the said sum of $2,000; that plaintiffs have offered and do offer to perform all the terms of said agreement on their part, but that defendants refuse to comply with said agreement.

The answer denies that the parties exchanged their respective properties upon the agreement set forth in the complaint, and alleges that a subsequent agreement was made and entered into between the parties, whereby the properties were exchanged and the possession thereof taken by plaintiffs and defendants. Defendants admit that they have not paid or offered to pay the said sum of $2,000, and allege that under a separate agreement defendants have delivered deeds to convey the said property, and that plaintiffs have accepted said deeds subject to a mortgage of $5,760; that defendants have placed security with plaintiffs, guaranteeing to defend the title against suit. Defendants deny that plaintiffs have offered or tendered to defendants the sum of $4,250, and defendants allege that they have done everything required of them to be performed by said subsequent agreement.

The trial court made findings that on or about March 4, 1922, plaintiffs and defendants made and signed the written agreement for exchange of properties referred to in plaintiffs’ complaint and designated as exhibit “A’* and made a part thereof; that at the time of signing said agreement the parties had orally agreed that plaintiffs were to obtain a loan on the property exchanged by defendants in the sum of approximately $7,000, so as to carry out the agreement and to provide certain additional money; that on or about March 8, 1922, plaintiffs and defendants agreed orally to exchange the said properties, each taking the property of the other subject to existing encumbrances of record; that pursuant to said oral agreement one of the plaintiffs inserted in the deed conveying the property of the defend