Randolph v. Wise

McLUCAS, J.,

pro

tem.

Action in ejectment. Plaintiff appeals from an order granting defendant’s motion for a nonsuit.

It appears from the evidence that plaintiff was the owner of an interest in certain real property held in the possession of the defendant. The property was conveyed by deed to the plaintiff, a married woman. On June 17, 1921, plaintiff entered into a written agreement wherein plaintiff agreed to sell lot 6, block 7, of C. S. Miles’ Addition to Huntington Park, for the sum of $950, and to execute and deliver a good and sufficient deed of grant, bargain, and sale therefor. Plaintiff’s husband having disappeared, she was unable to secure his signature to the deed and could not deliver title on which the title company would issue a certificate. On February 23, 1922, plaintiff was granted a decree of divorce, the court holding that the property involved was community property, and awarding the plaintiff an undivided one-half interest therein. Defendant paid no part of the purchase price of $950, but remained in possession of the property, having made some improvements thereon after plaintiff had deposited with defendant the sum of $300 as a guaranty that she would give clear title. Some time during the fall of 1922, defendant tendered to plaintiff’s attorney one-half of the contract price of the property for a deed to a one-half interest in the property. This offer was not accepted. Plaintiff served upon defendant a written notice demanding possession of the premises

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and offering to allow defendant any offsets or credits to which he might be entitled to the extent of $300, any additional claims to be submitted to her attorney. Plaintiff at no time offered to comply with the terms of the agreement by tendering a deed for the premises to be conveyed. Defendant neither rescinded the contract nor offered to carry out the terms of the contract by offering to pay plaintiff the sum of $950 and accepting such title to the property as she was able to' give. Instead, he offered her the sum of $475 for her half interest in the property and refused to give up possession of the property to the plaintiff.

Appellant’s first contention is that the court erred in holding that the evidence introduced by plaintiff failed to make out a cause of action in ejectment, citing cases which hold as follows: A purchaser of land in possession thereof under a contract of sale by the terms of which the vendor is to execute and deliver to the vendee a good and sufficient grant, bargain, and sale deed to the property, together with an acceptable certificate of title showing the property to be free and clear of all encumbrances, cannot, upon the failure to convey a good and perfect title, retain both the land and the purchase money until a perfect title shall be offered to him. He must pay the purchase price according to the contract and receive such title as the vendor is able to give, if he chooses to retain the possession of the land.