McCarty v. Wilson

LANGDON, P. J.

This is an appeal by the defendant from a judgment against him for .$33,023, together with interest from February 10, 1912. This amount represents the balance due upon the purchase price of land belonging' to the estate of Anna B. McCarty, deceased, and which had been sold to defendant upon an order of court, made and entered in the course of probate proceedings.

The record presented upon appeal is lengthy and it would serve no useful purpose to discuss the facts in detail because the matter has been considered twice by our supreme court. Upon the first trial of the cause judgment was given for the defendant and this judgment was affirmed by the district court of appeal. A hearing was granted by our supreme court and said judgment in favor of defendant was reversed. Thereupon, the defendant and present appellant petitioned the supreme court for a rehearing of said matter and a supplemental opinion was filed in answer to this petition, which did not, however, change the effect of the opinion.

(McCarty

v.

Wilson,

184 Cal. 194 [193 Pac. 578].) Thereafter, a second trial was had, resulting in a judgment for the plaintiff from which this appeal is taken. The facts found by the trial court upon the present record present precisely the same questions of law as those passed upon by the supreme court upon the former appeal.

Appellant concedes that many of the matters relied upon by him for a defense in the first trial are settled against him by the opinion of the supreme court upon the former appeal. One point, however, he contends was not passed upon in the former appeal, and upon that point he relies for a reversal of the judgment. His position is stated by him as follows: “The only question involved on this appeal is whether respondent under the circumstances attending the execution of the contract of sale is entitled to the aid of a court of equity.”

Upon the former appeal, the supreme court passed upon the order of sale made by the probate court and held it to

[705]

be valid; it also passed upon the right of the executor, as such, to enforce a specific performance of the contract for the sale and purchase of the land.