In re Pearson

McFarland, J. This is an appeal of E. J. Moore, executor of the will of Hiram A. Pearsons, deceased, from an order of the court below requiring him to complete the sales of several pieces of real property made by him to John F. English and others, respondents herein, and confirmed by the court March 18,1892, and to execute to them deeds of conveyance of said property upon their payment of the balance of the purchase money.

On January 28, 1892, the appellant, as executor, sold the said property at auction to the respondents, under a power of sale contained in the will of said Pearsons, deceased. The terms of the sale were cash in gold coin, ten per cent to the auctioneer at the time of sale, and balance on confirmation of sale by the superior court. When the matter of confirming the sale came up before the court on March 18, 1892, the respondents herein objected to the confirmation on the ground that under the will the executor had no power to sell the property without a previous order of the court; but the court made an order confirming the sale. Thereafter, on April 18, 1892, appellant tendered to each of the respondents a deed of the property sold to him, and demanded payment of the balance of the purchase money, which amounted to thirty-three thousand three hundred and forty-five dollars, and notified them that on default of immediate payment thereof “such recourse will be taken as is afforded by law.” Payment not having been made, the appellant, on April 28, 1892, served and filed in court his affidavit and motion for an order directing a resale of said property. Respondents appealed to this court from the order of March 18,1892, confirming said sales. On March 23, 1892, the parties made a written agreement and stipulation, in which, after a recital of the foregoing facts, it was stipulated that the appellant herein “shall consent that his motion of resale be continued until after said appeal to the supreme court shall be determined”; and that if the order confirming the sale should be affirmed by the supreme court, the re[573]spondents herein should pay to the appellant, “within thirty days after the determination of said appeal against them, the unpaid balance of the purchase price of the lots of land purchased by them respectively as aforesaid, on receipt of the deeds of said properties respectively.” This stipulation, as originally drafted, contained the following clause: “With interest thereon from the date of said order of confirmation at the rate of five per cent per annum”; but this clause was erased before execution, and there was inserted in its stead, in the handwriting of the attorney of the purchasers, the final words of the stipulation, viz: “On receipt of the deeds of said properties respectively.”