Merrill v. Merrill

Vanclief, C. On August 29, 1887, a written contract was executed by and between F. H. Merrill, Otto Froelich, and 0. T. Hopkins, by the terms of which Merrill agreed to sell to Froelich an undivided one-sixth part in the south half of the northeast quarter and the southeast quarter of section 21, township 2 south, range 13 west, San Bernadino base and meridian, known as the “ Merrill and Hancock tract,” and “ being the interest to which said Merrill is entitled under the will of his late father, Ed. Merrill, deceased, for the sum of twelve thousand five hundred dollars, to be paid as follows”: $1,500 on the execution of the agreement, the receipt of which is acknowleged; $1,500 in sixty days from date of agreement; $4,750 in six months; and $4,750 in nine months from date. The agreement then proceeds as follows: “ The deed of said lands from said Merrill to said Froelich is placed herewith in escrow, with said Hopkins, .... to be held by said Hopkins until the final payments are made to said Merrill as above stated. In case of the default in the payment of the sums of money paid as herein named, .... then said sums of money are to be considered forfeited by said Froelich to said Merrill, and said Hopkins hereby agrees to return and deliver said deed to said Merrill. In the event of the payment of the sums of money to said Merrill as herein specified, then said Hopkins is to deliver said deed to said Froelich, and said Hopkins hereby agrees so to do. The proceedings now pending for distribution of said property to said Merrill, in the superior court of Los Angeles County, state of California,' are hereby held in abeyance, and continue so till default shall be made in this agreement, when said Merrill shall be at liberty to revive said proceedings for such distribution; but in case this contract is fulfilled according to the terms above mentioned, then said proceedings for distribution are to be dismissed.”

It is averred in the complaint that in making this agreement Froelich acted solely as agent for the plaintiff, and that it was made for her benefit alone, of which [336]defendant had notice at the time it was made; and that plaintiff paid to defendant the first two installments with her own money according to the agreement, of which defendant also had notice at the times those payments were made. The complaint then proceeds as follows:—

“ 5. That at the-of the execution of the said contract, the said F. H. Merrill had no right or title in or to said lands described in said contract; that the said Froelich and said plaintiff did not know that the said defendant had no right or title to said lands, and the said Froelich and the said plaintiff believed that the said F. H. Merrill had the right and title to a one-sixth undivided interest in and to said lands.