Ward v. Matthews

Belcher, C. C. The plaintiff brought an action of ejectment to recover possession of 320 acres of land. The case was tried upon the issues raised by the answer, and on the twelfth day of June, 1885, the trial court found and adjudged that the plaintiff held the, title to the demanded premises, in trust, to secure the payment by defendant to him of the sum of $1,192.93. It further adjudged “ that said defendant pay to said plaintiff the said sum of $1,192.93 within twenty days from the date of this decree”; “that if payment or tender of payment is not made within the time herein specified, then this decree shall be null and void, and of no effect, and judgment shall he entered for plaintiff as prayed for in his complaint”; “that upon payment or tender.of payment by said defendant to said plaintiff within the time herein provided, then at the time of such payment or tender of payment said plaintiff shall execute and deliver to said defendant a good and sufficient deed of the premises in the complaint herein described” ; “that if said plaintiff shall refuse and neglect to execute and de-. liver such deed for the space of one day after such payment or tender of payment, then the clerk of the superior court, .... or his successor in office, is hereby 'constituted and appointed the commissioner of this court, with full power to make, execute, deliver, and have recorded such deed.”

[345]The plaintiff moved for a new trial of the case. The defendant, on the twentieth day after the decree was rendered, tendered to the plaintiff the amount of money named in the decree, and demanded a deed of the premises, but the plaintiff refused to accept the money or make the deed. The defendant did not deposit the money, and never applied to the commissioner appointed by the court to execute a deed. Subsequently the plaintiff moved the court to enter judgment in his favor, on the ground that defendant had failed to comply with the terms of the decree. The court denied the motion for new trial and the motion for judgment, and the plaintiff appealed from both orders.

Judgment affirming the orders appealed from was entered in this court on the thirtieth day of June, 1887 (73 Cal. 13), and thereafter, on the eighth day of July, 1887, plaintiff tendered to defendant a deed of the premises, duly executed, conveying all the right, title, and interest which vested in and belonged to plaintiff on and prior to the twelfth day of June, 1885, and demanded payment of the amount of money named in the decree, but defendant refused to accept the deed or pay the money. The deed was then left by plaintiff in the office of the clerk of the court.