O'Donnell v. Jackson

Thornton, J. We are of the opinion that a valid contract in writing was made between plaintiff and defendant on or about the 10th of December, 1878, for the sale by the former to the latter of the land in controversy, for the sum of $1,130, to be paid in cash on the execution of a deed by plaintiff.

At the time of the contract the land was under administration in the Probate Court for the city and county of San Francisco, as part of the estate of Hugh O’Donnell, deceased. The decedent died intestate. The land descended to the heirs of decedent, who resided in Ireland. The plaintiff was not an heir of decedent, and the records in the recorder’s office of Lake County, where the land was situated, showed no conveyance by the heirs to the plaintiff. This, defendant ascertained about December 27, 1878. The defendant then objected to the title, on the grounds above mentioned.

It appears that plaintiff was the owner of an undivided [623]moiety of three fourths of the land when the contract was executed, and that he has acquired the title to the other fourth since this action was commenced. On or about the 20th of April, 1879, the plaintiff repudiated the contract, of which, on the date just above mentioned, defendant was informed. The repudiation was based on the ground that the sale was for cash, and that he (plaintiff) would not go to the expense of getting the land out of probate to effect a sale of so small a tract.

We are of opinion that the improvements made on the land were made without the sanction or approval of the plaintiff. Matthews’s authority from plaintiff only extended to making the sale, and he had no power to authorize defendant to make any such improvements. As they were made without authority, they may be laid out of the case.

The court finds, and there is evidence to sustain it, that the defendant had the money on hand to make the payment, from the 10th of December, 1878, to the 30th of April, 1879. The evidence showed that he had borrowed the money at one and one fourth per cent per month, and had paid the interest on it during the period above mentioned. He testifies that he never paid or offered to pay the purchase-money, because O’Donnell did not make him a deed, and because about December 27, 1878, he found out that plaintiff’s title was not good.

Thus the matter stood until this action was commenced, on the 23d of March, 1882, by the plaintiff, to recover possession of the land described in the complaint, as a defense to which the defendant set up the contract above mentioned, and asked that it be specifically executed. This he did in a cross-complaint filed July 5, 1882. The defendant did nothing for more than three years after he knew that plaintiff had refused to abide by the contract. He did not pay or offer to pay anything, and never seems to have urged the consummation of the contract, though during the whole time he was