Greenwood v. Beeler

ANGELLOTTI, J.

In this action judgment went for defendant, and plaintiffs have appealed from an order denying their motion for a new trial. The justices of the district court of appeal for the first district being unable to agree upon a judgment, the matter was transferred to this court for hearing and determination.

The action is one by the executors of the will of Monroe Greenwood, deceased, to obtain a judgment fixing the amount due on a contract for the sale by deceased to Beeler of a lot of land, requiring Beeler to pay the same within a time to be fixed by- the court, and providing that in default of such payment by defendant, his right, title, and interest shall be forever barred and foreclosed, and plaintiffs’ title quieted as against him.

[416]

It appears by the complaint, and is admitted by the answer and cross-complaint of Beeler, that the only written contract between the parties was one entered into on February 23, 1895, whereby deceased agreed to sell the land to Beeler for one thousand and fifty dollars, Beeler agreeing to pay said amount in installments, fifty dollars at the date of the agreement, and the balance in monthly installments of twenty dollars or more at his option, with interest on deferred payments at the rate of seven per cent per annum, and all state, city, and county taxes on the property. The contract provided that the deceased would convey the property to Beeler, by good and sufficient deed, upon full payment being made in the time and manner stated, and that any failure of Beeler to comply with the terms of the contract would release deceased from all obligations to convey, and cause a forfeiture of such money as had been paid by him.

It is admitted that, as alleged in answer and cross-complaint and found by the trial court, payments were made from time to time by Beeler, aggregating such an amount, that, if the same were applied solely on such written contract, there remained due thereon on March 26, 1899, the sum of $270.10 only, which' amount was on said day duly tendered to plaintiffs by defendant, with a demand for a deed, and refused by them.

It appears that in May, 1896, deceased orally agreed to advance to Beeler the money necessary to construct a dwelling house on the land, and that he did, in pursuance of this understanding, between May 20, 1896, and September 23, 1896, advance sums aggregating $876.50, the cost of said house. If all money paid by Beeler was paid on the written contract, none of this $876.50 or any interest thereon has ever been paid. Plaintiffs claimed that this should be taken into consideration in determining the amount due and payable before a deed can be required, and that they were entitled to foreclose Beeler’s rights in the land under the agreement, in the event of his failure to pay the same. They further claimed that the amounts paid by Beeler were paid not only on account of the purchase price of the land under the written contract, but also on account of the amount advanced for the construction of the house, and that, consequently, more than $270.10 remains due on the written contract. In support of