White v. Adler

PER CURIAM. This action was commenced in the superior court of Yolo county, and was based upon a written contract executed by the plaintiffs, as parties of the second part, and by the defendant, as party of the first part. The contract was dated May 28, 1892, and the material parts of it read as follows: “Whereas, a conveyance has this day been made by said parties of the second part to said party of the first part of certain lands [describing eighty acres of land situate in Yolo county], the title of which eighty acres is defective, and the payment for which has not been made by said party of the first part: Now, it is mutually understood and agreed that said parties of the second part will clear the title to said land, satisfactorily to said party of the first part, within twelve (12) months from this date; and should said title, within said time, be made satisfactory to said party of the first part, he will pay to said parties of the second part the sum of two thousand two hundred ($2,200) dollars in U. S. gold coin; and, should said title not be so as aforesaid made satisfactory to said party of the first part, then said party of the first part will reconvey said land to said parties of the second part, at the expiration of said twelve (12) months, free of cost to said second party.” The complaint alleges “that, within twelve months from the date of said agreement, these plaintiffs took steps to, and endeavored to, clear the title to said land satisfactorily to said Adler, and to make the title to said land satisfactory to said Adler, and plaintiffs are informed and believe, and therefore allege, that plaintiffs did clear the title to said land, and quiet the same in said Adler; that plaintiffs have furnished defendant with a complete abstract of all the steps taken by them affecting said title, which saidi abstract contains an abstract of everything of record affecting the title to the said tracts of land upon the records and files of said Yolo county; that defendant has refused to state, and still refuses to state, whether or not the title to said land is now satisfactory to him or not; that said defendant, although demand has been made upon him by plaintiffs, has refused, and still refuses, to either pay to plaintiffs the said sum of $2,200, or to reconvey to said plaintiffs the said land.” And the prayer of the complaint is for the judgment and de[217]cree of the court “that defendant specifically perform his said contract, and, according to the terms thereof, either pay said sum of $2,200, or, in case said title is not satisfactorily cleared and quieted according to the true intent and meaning of said contract, reconvey said land to plaintiffs, and for such other and further, or other or further, relief as may be proper.” In due time the defendant, upon proper notice, demand and affidavit, moved the court that the place of trial of the action be changed from the county of Yolo to the city and county of San Francisco, upon the ground that at the time the action was commenced he was, and ever since has been, a bona fide resident of said city and county. The court denied the motion, and, from the order made, defendant appeals.