Worley v. Nethercott

Belcher, C. In January, 1889, the plaintiff was residing upon and claiming to own certain real property in the town of Red Bluff, Tehama County. On the 26th of that month, plaintiff verbally agreed, to sell the real property and some personal property to the defendant, for the sum of $1,880, and to' let him take immediate possession thereof. Plaintiff was to give a warranty deed of the real property, conveying a good and perfect title thereto, and defendant was to pay $1,000 cash, and give his note for $880, bearing interest at the rate of ten per cent per annum, but it was not stated how long the note might run. Defendant paid ten dollars to bind the bargain, and asked paintiff if ho had a good title to the property, and the latter replied that he thought he had; that he had a warranty deed of it. Defendant asked for an abstract of the title, and plaintiff agreed to furnish one. On the 29th of the month, defendant took possession, and about that time the abstract was made out and put in the hands of Mr. Ellison, an attorney at law. On the 4th of February the parties met, and went to Mr. Ellison’s office, and defendant testified: “ When I entered Mr. Ellison’s office, knowing that he had the abstract, I said to him: * As an attorney, can you say that the title is perfect?’ He said: ¿Ho, I can’t/ He said: ‘I have looked over it, and I can’t say that it is perfect/ ” A few days later, the parties again met, and plaintiff testified: 611 went to him and told him I was going away, and I wanted to settle it up one way or another; he wanted to know what I wanted to do, and I asked him if he was satisfied with the title, and he said he was n’t; then I told him we would say quits; he said he had been out considerable in moving down there, and would be in moving away; I asked him how much, and he said about twenty dollars; I told him I would pay it and he would give up possession; he said he did n’t care to do it.” Defendant then proposed to retain possession of the property and to make some improvements upon it, and plaintiff agreed that he might make improvements costing from $100 to $150-

[516]Before the end of February, plaintiff went to the mountains, and he did not return till some time in August. During his absence, defendant made improvements on the property, costing, as he testified, $388.21 besides his own work, 'which he estimated to be worth $125.

The matter remaining unsettled, plaintiff, in October, executed a warranty deed of the property, and on the 2d of November tendered it to the defendant, and demanded of him payment of the balance of the purchase-money, namely, $1,870. The defendant refused to accept the deed or to pay the money, but he, on the same day, tendered and asked plaintiff to execute a warranty deed for an undivided one half of the property, and in connection therewith, offered to pay him $1,075 for the real and personal property. The plaintiff refused to execute this deed or to accept the payment as offered.