Sheplar v. Green

Haynes, C. — Appeal from a judgment in favor of respondents Green and Robinson, upon the judgment roll.

The action was brought against respondents and one J. W. Rupley, to quiet title to eighty acres of mineral land. Each defendant answered separately, and each filed a cross-complaint for specific performance; Rupley to a part thereof containing about twenty acres, under a contract made and recorded in 1871, and the other defendants under a contract of purchase made by defendant Green with the plaintiff July 3,-1890, for the whole of said eighty acres. Robinson’s claim was under this contract, in which he was interested with Green.

Judgment went in favor of Rupley for the part claimed by him, and described as lying “ below the toll-road,” being twenty acres, and in favor of defendants Green and Robinson, upon their cross-complaint, awarding specific performance of the Green contract, for the remaining sixty acres. There was no appeal from the judgment in favor of Rupley.

The contract price of the land was two thousand five hundred dollars, of which Green paid plaintiff one thou[220]sand dollars, and deposited the remaining fifteen hundred dollars in the hands of one Mahoney, the deposit, by the terms of the contract, to remain in his hands “ until approval of title” by an attorney named in the contract,'whose decision as to title should be final. Five days were allowed for examination of title after receipt of the abstract, and the balance of the purchase-money “to be paid on delivery of deed.” The contract further provided that the purchaser was to get full eighty acres of “ bed rock,” but if there should be less, the price was to be correspondingly reduced.

At the date of the contract the quantity of land embraced in the Eupley contract was not known. Plaintiff took no steps to ascertain the quantity, nor did he furnish an abstract, as to which matters the contract was silent. In the latter part of July, 1890, defendant Bobinson had the Eupley tract surveyed, and also procured an abstract of title, on which the Eupley contract appeared.

Soon thereafter, and before August 8th, the attorney informed plaintiff that there were twenty acres in the Eupley lot, and that he had good title to the remaining sixty acres.

Immediately after entering into the contract, defendants went into possession of the land, and made valuable improvements thereon, and also upon adjoining land, with a view to the development of the land in question.