Webster v. Gibson

ALLEN, P. J.

Action for specific performance. Judgment for defendants. Appeal from judgment and an order denying a new trial.

The material facts involved, as found by the court, were, that on March 21, 1905, defendant Anna Gibson was the owner of certain real property; that on said date she signed a receipt for $100, acknowledging the same as part payment on account of a sale by her to plaintiff of said property; that the total consideration price was $4,900; of this sum $2,900 was to be paid on production of a certificate of title and delivery of a deed, and the balance to be secured by mortgage, drawing six per cent interest on a part of the premises sold. No time was specified in this agreement within which the same should be performed.

The court found the signature of Mrs. Gibson to have been procured by misrepresentation in relation to certain material facts involved in the transaction. Subsequently to the execution of the instrument, Mrs. Gibson acknowledged the deed conveying said premises to plaintiff and left the same with a notary, without instructions, intending, however, that the same should be by some person delivered to the purchaser in performance of her agreement. Subsequently, on April 14, 1905, the husband, without instructions from the wife, obtained possession of the deed and on said date he and the plaintiff executed to an abstract company certain written escrow instructions relative to its delivery, among which instructions it is stated that if the abstract company could,

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within fifteen days, write an unlimited certificate showing the title to be free of encumbrance, except taxes for the current year, it should deliver the deed to plaintiff and pay to defendant Anna Gibson the $2,900 purchase money and deliver to her the mortgage. It was further stipulated that unless such abstract company could write such certificate within fifteen days it should return the money and mortgage to plaintiff. It appears that the title was in such condition, by reason of certain building restrictions theretofore imposed upon the premises, that the abstract company could not write such certificate, and the title was not free and unencumbered in defendant. That on May 3d notice of the condition of the title was communicated to all parties, and plaintiff was notified that unless he was willing, within twenty-four hours, to accept the title in its then condition that the deed would be returned to the defendant; that plaintiff did not agree to accept such title within the. time specified, and thereupon, on May 5th, the deed was returned to the defendants, and the money and mortgage restored to plaintiff; that on the day following the defendant tendered to plaintiff the $100 received under the original receipt, which he refused to accept; that no subsequent tender of the money or mortgage was ever made by plaintiff to said Anna Gibson, and she is not able to transfer a good and sufficient title to plaintiff; that the terms of said original agreement were not just and equitable; that the sum of $4,900 was not the full value of the premises at the date of the execution of the said agreement.