Gammon v. Bunnell

• Decision Date: 24 November 1900
• Citation: 22 Utah 421,64 P. 958
• Court: Utah Supreme Court
• Parties: WILLIAM GAMMON, APPELLANT, v. MARY E. BUNNELL, AS ADMINISTRATRIX OF THE ESTATE OF THOMAS GAMMON AND ELIZABETH GAMMON, DECEASED, AND MARY E. BUNNELL AND MARTHA ANN GAMMON ROBERTS, HEIRS AT LAW OF AND TO THE ESTATE AFORESAID, RESPONDENTS

64 P. 958

22 Utah 421

WILLIAM GAMMON, APPELLANT, v. MARY E. BUNNELL, AS ADMINISTRATRIX OF THE ESTATE OF THOMAS GAMMON AND ELIZABETH GAMMON, DECEASED, AND MARY E. BUNNELL AND MARTHA ANN GAMMON ROBERTS, HEIRS AT LAW OF AND TO THE ESTATE AFORESAID, RESPONDENTS

Supreme Court of Utah

November 24, 1900

Rehearing denied and judgment modified December 15, 1900.

Appeal from the Fourth District Court Utah County. Hon. J. E. Booth Judge.

Action by plaintiff to compel specific performance of a contract in relation to real estate entered into by defendant's decedent. A demurrer was interposed in the lower court upon the ground that the complaint did not state facts sufficient to constitute a cause of action. Said demurrer was sustained and plaintiff electing to rely upon his complaint judgment of dismissal was entered and plaintiff appealed.

Reversed and remanded.

M. M Warner, Esq., and Chas. DeMoisy, for appellant.

We contend that the depositary of an escrow is the agent of both parties, and the contract when so made and deposited is not revocable at the mere will of either of such parties, nor will the death of either party abrogate the contract of deposit, and where no specific or definite time is fixed for the performance of any act, no default attaches until demand is made, and a refusal or failure to perform, follows. We cite the court to the following authorities to sustain plaintiff's right and the sufficiency of the complaint: Vol. 1, Devlin on Deeds, Sec's 328-9 and 330 and notes; 13 John N.Y. 285; 6 Wendall N.Y. 666; 2 Mass. 554; 9 Mass. 307-10; 3 Am. Dec. 66; 62 Cal. 496; 48 P. 563.

As to demand necessary to default, see Vol. 2. Warner on Vendors, p. 774-75.

M. M. Kellogg, Esq., for respondents.

MINER, J., delivered the opinion of the court. BARTCH, C. J. and BASKIN, J., concur.

OPINION

MINER, J.

STATEMENT OF FACTS.

The plaintiff in his complaint alleges, in substance:

1. That Thomas Gammon died on the 27th day of July, 1897, and that Elizabeth Gammon died on the 23d day of February, 1899.

2. That in consideration of the payment by plaintiff to Thomas Gammon and Elizabeth Gammon of one dollar, they made, executed and delivered in escrow, for the benefit of plaintiff the written instrument set forth in the complaint, which said instrument was intended by all parties thereto to be a warranty deed fully sufficient to convey title to plaintiff of all the land described therein.

3. That the deed was duly acknowledged, but by inadvertance and mistake the officer before whom it was acknowledged neglected to attach his official seal and signature to the certificate of acknowledgment of said instrument.

4. That the further consideration for the said land was the payment by plaintiff to one Martha Ann Gammon Roberts, of Independence, Missouri, of the sum of $ 300, gold coin, which should become payable after the death of the grantors, and that said payment should be evidenced by a receipt signed by the said Martha Ann Gammon Roberts, which receipt should entitle plaintiff to the said intended warranty deed aforesaid.

5. That while said deed was still in escrow, an offer, by letter, was made to pay said Martha Ann Gammon Roberts the said sum of $ 300, and a refusal, by letter, to either accept or receipt for the same by her, or to accept less than seven acres of land covered by the deed. It is further alleged that while the petition for the appointment of an administratrix of the estate of the grantors was pending in the probate court plaintiff filed a petition in said court praying a specific performance of the contract, and that said court dismissed said petition, without prejudice, under the provision of Secs. 3935-6-7-8 Rev. Stat. Utah, 1898.

6. Plaintiff further alleges that he has deposited with the clerk of the district court, and placed in the hands of the court for the use of said Martha Ann Gammon Roberts, the sum of $ 301 U.S. gold coin, as a tender for the balance of the purchase money of said land.

7. A full and complete compliance by the plaintiff of all of the conditions on his part to be performed to fulfill the terms of said contract of purchase is alleged.

8. It is alleged that at the date of making said purchase to-wit: April 22d, 1894, and by virtue of said contract of purchase, the plaintiff went into possession of all of said land, and has ever since exclusively possessed the same, and has paid all of the taxes thereon ever since.

9. It is further alleged that the defendants are claiming to own some interest in and to the premises adversely to plaintiff, and that they will, unless restrained, put a cloud upon plaintiff's title.

10. The complaint further alleges jurisdiction, and prays for specific and general relief, and also alleges that said deed was placed in an envelope and delivered to one Joe E. Daniels in escrow, and on the outside of said envelope was written and signed by said parties, the following contract:

"Whereas, the undersigned, Thomas Gammon, is desirous of providing out of his estate, which consists of the lands described in the within deed, the payment of $ 300 United States gold coin, to one Martha Ann Gammon Roberts, now of the State of Missouri, (Independence);

"Now, therefore, the within warranty deed is placed in escrow with Joe E. Daniels, to be by him held till the grantee, William Gammon, shall exhibit and deliver to him a receipt payable, signed and witnessed by the said Martha Ann Gammon Roberts, acknowledging receipt in full of said $ 300, and upon receipt of such proof of such payment of said sum of money, the within deed shall be delivered without further question to said William Gammon. (Signed) THOMAS GAMMON,

"WILLIAM GAMMON."

To this complaint the defendants interposed a demurrer on the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained. The plaintiff elected to stand on his complaint and the defendants upon their demurrer. Thereupon the complaint was dismissed, and a judgment for costs rendered against the plaintiff. From this judgment plaintiff appeals.

After stating the facts, MINER, J., delivered the opinion of the court.

The only question for determination in this case is whether the complaint states a cause of action.

Sec. 3935 R. S. 1898, provides that: "When a person who is bound by contract in writing to convey any real estate, dies before making the conveyance, and in all cases when such decedent, if living, might be compelled to make such conveyance, the court may make a decree authorizing and directing his executor or administrator to convey such real estate to the person entitled thereto."

It appears that a legal contract was made to convey the land in question to the plaintiff, and that a part of the consideration was paid, and that the balance thereof was to be paid, after the death of the grantors, to Martha Ann Gammon Roberts, when she should acknowledge the receipt in full of the $ 300. When this was done the deed was to be delivered to the plaintiff. Plaintiff at the time entered into possession of the land, and has ever since remained in such possession. After the death of the grantors the money was offered to Martha Ann Gammon Roberts, and by letter she refused to receive the $ 300, or to sign or deliver a receipt therefor, and demanded in lieu thereof 7 acres of land covered by the deed.

This offer to pay the amount due, and a refusal to accept the same or receipt therefor, coupled with her alleged hostile acts in seeking to take possession of the property covered by the deed, and her refusal to accept the tender of $ 301 paid into court, must be treated as a refusal on her part to acknowledge any right in the plaintiff under or by virtue of said deed, and a refusal to accept the offer made.

The depositary of an escrow is the agent of both parties, and a contract so made and deposited is not revocable at the will of either party or their representatives, but may be enforced under the provisions of Sec. 3935 R. S. If no date is fixed for the delivery or performance of the contract a reasonable time is intended and no default can attach until after a demand and failure or refusal to perform. 2 Warvelle on Vendors, p. 774.

The delivery of this deed in escrow rendered it absolute when the condition upon which it was made was fulfilled. The evident intention of the parties was that if within a reasonable time after the death of the grantors the plaintiff should pay to Martha Ann Gammon Roberts $ 300, evidenced by her receipt then the deed was to be delivered to the plaintiff. One dollar of this consideration was acknowledged paid, and the plaintiff went into immediate possession of the premises. The object of the delivery in escrow was to secure the payment of the price to Mrs. Roberts. When that was paid, or offered to be paid, and refused, the plaintiff had a right to the deed. The purpose of the escrow having been accomplished the plaintiff held the deed in the same manner he would have held it if it had been delivered to him in the first instance. The intention was that it should be...