McElwee v. Beckwith

LENNON, J.

The plaintiffs in this action are the special administrators of the estate of Sila 0. Law, deceased. In that capacity they instituted this action against the defendants to quiet title to certain real property described in the. complaint. The defendant Beckwith, answering the plain

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tiffs’ complaint, and in effect by way of cross-complaint, pleaded the following facts: Prior to her death and on or about the twentieth day of April, 1922, Sila 0. Law, the deceased, executed an option for the purchase of the land in controversy, under the terms of which Mrs. Beckwith was granted the right to purchase the property in controversy for the sum of thirteen thousand dollars in case it should be paid within sixty days from the date of the option. Said option provided the title to be given the defendant was to be “perfect” and that defendant should have an abstract showing “clear title.” The defendant further pleaded that a deed was executed and deposited in escrow on the third day of May, 1922, by the deceased, who shortly thereafter died, and that within the time expressed in the option the defendant deposited in escrow the sum of fourteen thousand dollars to cover the purchase price of the property and incidental expenses in connection with the transaction. Owing to the death of the deceased, the answer avers, it became necessary for the defendant to petition the probate court for an order directing the special administrators to convey the land in controversy in accordance with the option agreement, and an order so directing was made by the probate court.

Thereafter one of the special administrators refused to join in the execution and delivery of a deed to the property to the defendant Beckwith and the defendant accordingly prays in this action for a decree directing the special administrators to execute and deliver a deed to the property in controversy here upon the payment of the agreed purchase price.

It is further alleged in the answer that, pending the delay in the perfection of the title to the property in controversy, the money deposited as a tender under the terms of the option agreement, having been borrowed money under a thirty days’ time limit, was withdrawn pending the determination by the probate court of a contest of the last will and testament of the deceased based upon the ground that the decedent was of unsound mind at the time of the execution of the will, which was executed on the same day as the deed deposited in escrow by the decedent, and that prior to the institution of the present action the defendant Beckwith procured the money required to be deposited