193 P. 858 | Utah | 1920
The complaint, in substance, alleges: That on. or about November 30, 1908, plaintiffs agreed to purchase from defendant Matilda S. Houtz certain real property in Utah county (describing same), also 68 shares of water stock; that pursuant to^ said agreement a contract was entered into, whereby plaintiff David L. Evans agreed to pay to defendant Houtz for said land and water stock the sum of $2,400, with interest at 8y2 per cent, per annum, same to be paid within 10 years, and, if not so paid, then the interest to be 10 per cent per annum; that defendant Houtz executed a warranty deed, and indorsed the stock certificate to plaintiff David L. Evans; that to secure the payment of the purchase price plaintiff Sarah A. Evans executed a warranty deed to defendant Houtz, covering certain lands owned by said Sarah A. Evans; that this last-mentioned deed was made as security merely, and for no other purpose; that all these deeds and the stock certificate, together with a note executed by plaintiffs in favor of defendant for the $2,400 purchase price of the land and stock, were placed in an envelope, on the back of which was executed by plaintiffs and defendant Houtz an escrow agreement covering the transaction; that this envelope was deposited with the defendant Springville Banking-Company; that the deed from plaintiff Sarah A. Evans to defendant Houtz was not recorded, but was'acknowledged so as to be entitled to be recorded, and, plaintiff believes and is informed, and therefore alleges, that defendant will have said deed recorded if it comes into her possession, and will thereby place a cloud upon plaintiff’s title to said land, of which plaintiff Sarah A. Evans is the owner in fee, subject only to the payment of the $2,400 aforesaid; that plaintiff David L. Evans ever since the execution of the above-mentioned documents, has had possession of the land thereunder, and has enjoyed the rights evidenced by the water stock mentioned; that he has improved said lands by draining,
The evidence fully sustains the findings of fact, which are in harmony with the allegations of the complaint.
Appellant assigns as error the action of the court in permitting respondents to amend their complaint in the manner heretofore shown. There was no request for
Appellant contends that the money due under the contract never having been actually or physically tendered until the trial, the respondents were bound, in any event, to pay the costs and interest from the time the contract matured, December 1, 1918, to the time of trial, and that the tender at the time of trial was wholly ineffectual, for the reason that the costs and interest were not tendered in addition to the purchase price of $2,400. Upon the undisputed evidence, the court found that when on November 29, 1918, appellant was informed that respondents desired to settle with her, they were informed by appellant that she would not accept the money, and would not deliver, nor permit the delivery of, the deeds, and that on December 21, 1918, when she was agairn informed by respondents ’ counsel that David L. Evans desired to pay, and would pay, the balance due on the said contract, she “refused to deliver the deed, or other written instruments, upon the payment of said money or otherwise, and that she still refuses to deliver, or permit the delivery of, said written instruments or otherwise perform her said contract. ’'
From this finding, which is not assailed as unsupported by the evidence, it is apparent that if the contract had not been repudiated by appellant, and she had complied with its terms, she would have incurred no costs, and could not have had a
The court, therefore, did not err in decreeing that $2,400 was the amount which appellant was entitled to have delivered to her by the clerk of the court, with whom the money had been deposited.
It is urged by appellant that respondents never tendered the $2,400 due appellant on the contract. The complaint alleges and the testimony establishes that to make a technical tender by actually offering. the money to appellant would have been a useless ceremony, for the reason that she had repudiated the contract, and said she would not accept the money due thereon, and would not allow respondents to have the property. The evidence of waiver of tender
Judgment affirmed with costs.