Thurber v. Meves

VAN FLEET, J. January 1, 1883, plaintiff made a contract in writing with Otto Heves, under which Heves entered into the immediate possession of a tract of about forty acres of land belonging to plaintiff, the whole of which available for the purpose Heves was to clear up and cultivate to such fruit trees, grape vines and small fruit plants as should be furnished for the purpose by plaintiff—a certain acreage to be cleared and set out each year during the period of four years; and under which contract Heves was to erect certain fences and open up a certain private way or road; in consideration of which services plaintiff was to convey to Heves on January 1, 1888, the title to the north half of said premises.

On Harch 10, 1884, Heves borrowed of plaintiff one hundred and fifty dollars, for which he gave his promissory note payable two years from date, with interest at one per cent per month, payable quarterly, and to secure payment of which he gave plaintiff a writing which referred to the first mentioned contract, and provided that said contract should be held as'security for payment of the note, and making the right to the conveyance therein provided for, “dependent upon the payment thereof at the times and in the manner mentioned in said promissory note, in addition to the other conditions precedent to said conveyance.”

August 14, 1889, Heves died, and Harch 10, 1890, plaintiff brought this action against these defendants, the heirs of Heves, to quiet title to the north half of the land described in said first-mentioned contract, then held and occupied by defendants, and to acquire possession thereof.

In a cross-complaint the defendants set up the contracts between their ancestor and plaintiff above referred to, alleged a compliance with the terms of the first, except to a partial extent wherein compliance was prevented by certain acts of plaintiff, a tender of payment of said note and willingness and readiness to pay any amount found due thereon, and prayed that plaintiff be [37]decreed to convey to them the portion of land stipulated in said contract. The court below found the facts in all material respects as alleged in the cross-complaint, except as to the alleged tender of payment of the note, and made a decree wherein plaintiff is required to convey the land to defendants upon payment by the latter, within sixty days, of the amount of said note and accrued interest.