Seventy-Six Land & Water Co. v. Superior Court

De Haven, J. This is a proceeding upon certiorari for the purpose of reviewing the action of the superior court of the county of Fresno in adjudging the petitioner guilty of contempt.

On February 21,1890, that court, in an action therein pending for specific performance of an agreement to convey land, in which one Abbott was plaintiff, and the petitioner here the defendant, entered a judgment in favor of the plaintiff, Abbott, the material part of which is as follows: “It is hereby ordered, adjudged, and decreed that the plaintiff herein, O. L. Abbott, have judgment as prayed for herein against the defendant, the ’76 Land and Water Company (a corporation), that as to all that certain tract or parcel of land situated in the said county of Fresno, .... described as follows, to wit, . . . . the said defendant, the ’76 Land and Water Company (a corporation), is the trustee of said plaintiff, O. L. [141]Abbott, and, as such trustee, said defendant holds the legal title to said property in trust for plaintiff, the said legal title to be by defendant conveyed unto plaintiff by defendant on payment therefor as herein provided; that said plaintiff is the owner of the right to buy the said 320-acre parcel of land .... of and from defendant for the sum of four thousand eight hundred ($4,800) dollars, payable one fourth in cash and the remainder on or before the first day of October, A. D.1890, with interest on the deferred payment, the remaining three fourths ($3,600), at the rate of eight per cent per annum, payable annually in advance, from October 1, A. D. 1887, . . . . and upon said payment of one fourth of the purchase price and interest on the balance thereof as above mentioned, .... and upon full payment of the balance, the remaining three fourths, to wit, ($3,600), and all accrued interest thereon, on or before the first day of October, A. D. 1890, defendant do make, execute, acknowledge, and deliver unto plaintiff a full and sufficient deed of grant and conveyance of all of said above-described 320-acre parcel of land.”

The petitioner took an appeal from said judgment to this court, but the execution thereof, except as to costs, was not stayed by any undertaking, and upon January 3, 1891, the judgment was affirmed.

The amount named in the judgment, upon the payment of which the petitioner was thereby required to convey to plaintiff in that action the land described in the judgment, was not tendered to the petitioner until after January 3, 1891, and when so tendered, the petitioner refused to accept the "same or make the conveyance directed by the judgment. It was for the refusal to make such conveyance, after the service upon it on June 9, 1891, of a certified copy of the judgment above set out, and the tender of the money therein required to be paid it upon the execution of such conveyance, that the petitioner was adjudged guilty of contempt of court.