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defendants or the plaintiff to show that the Of this section the Supreme Court said: conditions imposed by the testator in the “As the statute provides only that the conspecial bequest had been complied with. It

It dition must be fulfilled when the heir or held that the allegation in the complaint that legatee is informed thereof, after the death neither of the sons had gone to live or re- of the testator, without fixing any period of side in the homestead at Punil since the time for its fulfillment, we understand that death of the testator was the statement of a it must be fulfilled within a reasonable time, cause of action; that the plaintiff was not according to the circumstances of each case required to present evidence to show that counting from the time when he was inthe heir entitled to the special bequest had formed of the condition, and in the case of not been designated by agreement or by lot, a special bequest made in favor of the heirs and said:

and sons of the testator, the parties favored "That is not the condition or the consider- should have been informed thereof upon the ation of the special bequest but is incident death of the testator; therefore, the lapse of it, so much so that even if the designa- of seventeen years until the date of the fil. tion had been made, the special bequesting of the complaint cannot be regarded as would still be ineffectual, inasmuch as the a reasonable time." designated person was not living and resid- The court also held that if it could not be ing at the family homestead in Punil." presumed that the defendants were informed

In substance it held that it was the intent of the special bequest at the death of the of the testator that the bequest should go to father, they were informed in regard to it the son who should reside in the family on February 21, 1919, the date of the amendhomestead, and that he should do so was the ed complaint; and that, as the answer was condition on which he might enjoy it, and not filed until April, 1920, the time between that it "could not be effective after proof these two dates was more than reasonable that none (sic) of the defendants lives and for complying with the condition of the beresides in the homestead at Punil.”

quest. The Supreme Court reversed the judg- The defendants presented no evidence in ment of the District Court and rendered the District Court. It appeared from the judgment declaring the special bequest “in- record that a considerable portion of the eseffectual" and that the property subject to tate of the testator was inherited by him it should be divided among the heirs of the from his deceased son, Candido, and is real testator. A motion for reconsideration was estate in Porto Rico, whose value is about denied and the court adhered to the judg- $100,000. The will, having been executed in ment which it had rendered.

Spain, must be construed in accordance with [1] There are six assignments of errors the law of that country. which challenge sharply the rulings of the The appellants contend that there is nothSupreme Court that the failure of either of ing in the statutory law of Spain nor the the sons to occupy permanently the residence Civil Law which requires a condition for in Punil was the substantial condition of the the performance of which no time limit is bequest; that in default of such occupancy fixed, to be fulfilled within any period of the choosing of one of the heirs by lot was time short of the lifetime of the beneficiary; not a compliance with the condition; that and that, under the Civil Law, Marcial has the failure to do so need not be shown; and his lifetime during which to perform the that the complainant had sustained the bur- condition of the bequest; that if he does not den of proof by showing that no one of the have his lifetime to comply with it the time beneficiaries of the special bequest had re- for its performance ought to have been fixed moved his residence to Punil.

by the court. In support of this last conSection 783 of the Civil Code of Porto tention counsel cites article 1128 of the Rico is as follows:

Spanish Code and section 1095 of the Porto “Sec. 783. A purely compulsory condi- Rican Civil Code, which in substance protion imposed upon the heir or legatee must vide that, if no time is fixed for the perbe fulfilled by him when, after the death of formance of an obligation and it can be inthe testator, he is informed thereof. The ferred that it was intended to grant time for case is excepted in which the condition has its performance to the one charged with it

, already been fulfilled and therefore cannot the duration of the time shall be fixed by the be carried out anew."

court. This section is admitted by counsel for the In their answer the defendants admit the appellants in his brief to be identical with special bequest and allege that Marcial and section 795 of the Spanish Code.

Herminio cast lots for it. They admit that

cease.

8 F.(20) 365 they now reside in Porto Rico, but allege

WARD v. PEARSALL. that their residence there is temporary and (Circuit Court of Appeals, Ninth Circuit. that it is the intention of Marcial to reside

January 5, 1925.) permanently in the homestead in Punil.

No. 4243. While there is no allegation in the complaint that the defendants were informed, !. Logs and logging om 2-Contract for sale of at the death of the father, of the special be

timber land held valid and enforceable.

A contract for the sa of timber land held quest in his will, they have admitted in their answer that they knew about it and that they seller and relied on by the purchaser nor for

not invalid for misrepresentations made by the acted in accordance with its terms by desig- laches of the seller in not sooner tendering perignating by lot which son should receive it. formance. They also deny that they have not made 2. Specific performance ou 6, 92(2)-Rule of the endowments for their sisters required by mutuality of remedy not applied, where it is the special bequest, thus showing that they understood that title is in another than venhad knowledge of its terms. It was in evi

dor; tender before or at trial held sufficient. dence that Marcial made short trips to Spain by from the time the contract is signed either

The rule that mutuality of remedy, wherebefore 1914 and that his sisters were then

party may enforce specific performance against living in the homestead and had been since the other, is essential is not applied, where it the death of their father.

was well understood, when the contract was [2] It can be presumed that, as an heir made, that the title was in another than the and beneficiary, Marcial learned the con

vendor, and in such case a tender of actual.

conveyance of title before or at the trial and tents of his father's will soon after his de- before decree is sufficient to give present mu

The Supreme Court was warranted tuality and sustain a decree for specific perin making this presumption, and in holding formance. that, as the condition that one of the sons 3. Vendor and purchaser em 129(1)-Contract should live and reside in the family home- held subject to state legislation reserving stead was not limited to any time for its per

right of public fishing. formance, it must be performed within a Where it was understood by the parties at

the time of a contract for sale of land that tireasonable time and that the period of 17

tle was to be acquired from the state, the conyears since the death of the father was rea- .tract was subject to state legislation reserving sonable time for compliance with the sub- the right to the public to fish on all land sold stantial condition of the bequest. Having by the state. found that a reasonable time had been af- 4. Vendor and purchaser fm 172—Vendor held forded for the performance of the condi- entitled to interest only from tender of abtion, there was no necessity for the court

stract showing good title. to grant any further extension of time for

On a decree for specific performance in his

favor, a vendor held not entitled to interest exthe performance of the condition.

cept from the time of his tender of an abstract The intention of the testator which, un- showing good title. der the civil law as under the common law, governs in the construction of wills, is evi- Appeal from the District Court of the dent. It was that one of his sons should United States for the Southern Division of take up his permanent residence in the fam- the Northern District of California; George ily homestead, not alone to satisfy a natural M. Bourquin, Judge. sentiment, but also to care for his two sis- Suit by Clarence E. Pearsall against Wilters. To postpone his doing so for the pe- lis C. Ward. Decree for complainant, and riod of his lifetime would plainly defeat this defendant appeals. Modified and affirmed. intent. We agree with the Supreme Court Corbet & Selby and John R. Selby, all that residence in the homestead was the ob- of San Francisco, Cal., and Elliott G. Stevject of the bequest and that the designation enson and Leo M. Butzel, both of Detroit, of the son who should establish it was sub- Mich., for appellant. sidiary to this, and that evidence that nei- J. N. Gillett, of San Francisco, Cal., and ther son had gone there to live after the W. R. Bacon, of Los Angeles, Cal., for aplapse of 17 years was sufficient proof that pellee. the condition of the bequest had not been Before GILBERT, HUNT, and RUDcomplied with.

KIN, Circuit Judges. The judgment of the Supreme Court of Porto Rico is affirmed, without costs in this HUNT, Circuit Judge. This is an apcourt.

peal by Ward, defendant below, from a de

cree for specific performance of a contract acres at $12.50 per acre and take the whole to purchase timber lands in California. title in your name, and I will then pay back

The lower court decided that all the equi- to you one-third of said $12.50 per acre, ties were with the plaintiff, Pearsall, and ... you to deed me the undivided onedecreed that Pearsall, within a limited time, third thereof upon such payment, and oneshould deposit an abstract of title and a third of taxes paid by you on said land to good and sufficient deed, and that, if such that time. I will turn over the said tract of deposits were in compliance with the con- 8,000 to 9,000 acres as above stated as soon tract, Ward, within 10 days from notice of as title to same is perfected, and it is my the deposit, should deposit the purchase expectation that I will be able to do so price, together with interest and costs. Be- within a year from now. I will also furcause of failure on the part of Ward to nish proper abstract of title which is to be comply with the provisions of the decree, passed upon by such attorney as we may plaintiff was awarded judgment against agree upon.” Ward replied, accepting Ward. Defendant appealed.

Pearsall's proposition. On July 13, 1905, The contentions of the defendant are that Ward wrote to Pearsall, offering to modify the contract was procured by misrepresen- the contract by agreeing to take at $4.44% tation; that the consideration for the con- per acre Pearsall's one-third interest in the tract was inadequate; that Pearsall was whole 9,000 acres, "being all the lands cov guilty of laches in not tendering perform- ered by your proposition of July 2, 1903, ance; that he abandoned his contract; that accepted by me. * * * In other words, there was no mutuality; and that there upon the conveyance to me in manner and were errors in rulings upon the evidence. form as provided in your said accepted

We gather these facts: In 1902 Pear- proposition of July 2, 1903, of the whole sall, a resident of California, tried to inter- San Hedron tract as aforesaid, I will pay est Ward, who was in Michigan, in acquir- to you two-thirds of the purchase price ing a tract of some 7,680 acres of sugar thereof at the rate of $12.77% per acre, and pine timber in California. Ward wrote execute and deliver to you my note for the that he would have to leave further timber remaining one-third of said purchase price. land purchases in abeyance." But in Jan-: * If you see fit to accept the modifiuary or February, 1903, Ward and Pear- cation of our agreement, as herein prosall met in California, and together examined posed, I will, of course, take in part pera map of the sections in which the tim- formance of the modified agreement the ber was located, and, after conference, Pear- 2,200 acres or thereabouts, which, as I unsall and Ward, together with a timber cruis- derstand, you are presently able to convey er whom Ward selected, examined the tract. under the original agreement, and upon the The cruiser pointed out where the timber conveyance thereof to me with title as procould be moved out. In response to Ward's vided in the original agreement. I will pay request that the proposition be put in writ. you at the rate of $12.779 per acre, twoing Pearsall wrote to Ward on July 2, 1903. thirds in cash and the remaining one-third stating that he held an undivided one-third in my note.” On August 24, 1905, Pearsall interest in about 6,000 acres of sugar pine wrote Ward: “I accept your offer of $12.land in Mendocino county, .and that he had 77% per acre for the whole tract, and will options on from 2,000 to 3,000 acres' adjoin- deed to you the same on the terms you ing the 6,000-acre tract; that he had an state. * *arrangement by which he could acquire the It was evidently understood between the remaining undivided two-thirds of the 6,000 parties that, as the title to the lands, exacre tract at the rate of $8.333 per acre. cept the 2,200 acres, was in the United and he offered to turn over to Ward the States, it would be necessary to have the undivided two-thirds of the 6,000-acre tract United States list the lands to the state of at the above-stated price with good and un- California, and that the state would then incumbered title, and also to turn over with issue its patents to holders of state certifilike title at like price the undivided two- cates which covered the lands. Delays octhirds of the additional tract of 2,000 to curred in the issuance of certificates and 3,000 acres, and take for himself the other patents, but both Pearsall and Ward were undivided one-third thereof. The letter using their efforts to have the lands patentcontinued: “If I should then desire you ed, but not until 1918 were the lands finally to do so, you are to provide the whole pur- listed. Pearsall then wrote to Ward that chase price of such tract of 2,000 to 3,000 he was ready to deliver the deed to the

3 F.(20) 365 lands and that he had deposited the deed him extending the time for sale to January with a bank to be delivered upon payment 1, 1921, provided his proposal was promptto the bank for his account the amount of ly accepted. The proposal evidently was the purchase price, plus $4,200 for taxes. the authority Ward had previously given to Ward answered Pearsall, declining to pro- sell with right to retain all Pearsall could ceed, and stating, among other things, that receive over $12.50 per acre. he was under no obligation to accept the [1] We take the view that the letters deconveyance because there was no enforce- scribing the lands and their probable value able contract, as Pearsall had misrepresent- for timber, written to Ward' by Pearsall beed matters to him; the representation being fore any agreement was entered into bethat "the timber lands referred to could tween them, became irrelevant, because easily be made accessible for operation and Ward in his pleading admits that in Auremoval of the timber by building a rail-gust, 1902, he wrote that he could not then road into the timber connecting with the take up the matter referred to in the letrailroad then being constructed from San ters, and because the evidence is that he did Francisco to Eureka.” Ward wrote that not take it up at all until after he himself he was willing to reconvey 2,200 acres that had examined the land and had received the he had already purchased and paid for, and written proposition of Pearsall, and bewished an adjustment of the whole contro- cause he admits the making of the contract versy within 60 days from the date of the of 1903 to purchase a two-thirds interest letter. As Ward failed to take up the deed, in the lands, and the amendment of the Pearsall brought this suit in February, contract in 1905, whereby he agreed to take 1919. After suit was commenced, there the whole tract at $12.77% per acre. Dewas further correspondence between the fendant argues that Pearsall told him of a parties, and on March 20, 1919, Ward wrote railroad in process of construction between to Pearsall, authorizing him to sell the San Francisco Bay and Eureka, and that lands by January 1, 1920, stating that he was induced by misrepresentations made Pearsall could retain all he received over by Pearsall that the timber was accessible $12.50 per acre. In pursuance to this let- for commercial purposes. But Mr. Ward ter Pearsall did try to sell the lands but had had long experience in the lumber busifailed, and in February, 1921, Pearsall com- ness in Michigan before embarking upon menced publication of summons.

this enterprise, and not only informed himIn the interim between the making of the self concerning the lands by a study of the contract of 1903 and 1911 Mr. Chamberlain, map showing the location of the timber, but an attorney who represented Mr. Ward, to obtain reliable, expert information emand Pearsall corresponded, and Ward and ployed his own cruiser, whom he had known Pearsall exchanged visits on several occa- in Michigan, to examine the property and sions, but nothing was said by Ward or his to make a report upon the same. More attorney to indicate any unwillingness on than all this, upon receiving the report of the part of Ward to go on with the con- his cruiser, Mr. Ward himself went to the tract. In September, 1906, Pearsall tele- lands, and, although he says his examinagraphed to Ward that he had an offer of tion was "superficial,” he must have gained $18 per acre for the tract, but Ward re- a knowledge of conditions which satisfied plied: "No I do not want to sell San Hed- him that the proposed contract was worth ron lands, having contracted for them for his while. It is clearly in evidence, too, permanent investment."

that Ward's cruiser looked up a way by Defendant testified that he relied upon which the timber could be moved from the Pearsall's representations as to accessibili- tract to a railroad, and that the cruiser and ty and quality of the timber; that he was another man went to a point where they on the tract with his cruiser before he ac- could see Elk creek and the country in gencepted Pearsall's proposition of July 2, eral. The circumstances, therefore, are 1903; that his examination was "superfi- against Mr. Ward's contention that the excial”; that he was told the timber would amination was superficial, or that he was go down the Eel river valley; that in 1904 induced to make the contract by representahe and his brother-in-law spent two days tions of Ward upon which he relied. on the land; that between 1908 and 1918 he It is argued that Pearsall represented did not receive any letter from Pearsall; that there was a coal mine some 6 miles that in August, 1919, he urged Pearsall to from the timber in the direction of where dispose of the timberland, and wrote to the logging road would go, and that in this

WHILE

there was misrepresentation, as the mine abandoned, and in support of this quotes a was 18 miles from the lands. As there was letter written by Pearsall to a bank at no allegation in the pleadings to the effect Eureka, Cal., dated July, 1918, wherein that there was any reliance placed upon the Pearsall instructs the bank to deliver the location of any coal mine, or that it was an deed to Ward upon payment of certain inducement to Ward to enter into the con- named sums, adding that he reserved the tract, the matter can be disregarded. right to withdraw the deed if not taken up

With respect to the substantive matter within 90 days. The fact is, however, that of accessibility of the land and the feasi- the deed was left in the possession of the

the of contractand that the acc

engineer and several witnesses of long log- trial, and was always available to Mr. ging experience testified that as a whole Ward, to whom it was again tendered at the land was a very good proposition, and the trial. The argument that Pearsall treatthat, except for a short distance, it was ed the land as his individual property is good for a logging railroad. Opposing met by the evidence that Pearsall did not opinions were expressed, but, inasmuch as sell the land, never told Ward that he the whole situation was considered by Mr. claimed it as his own, and was diligent in Ward before he made the contract, such attempting to obtain legal redress after opinions are immaterial.

January, 1921, or at the expiration of the So, likewise, is the contention that the time mentioned by Ward during which contract price was more than double the Pearsall was to try to sell the land. actual value at the time of the sale imma- . [2] There is a contention that Pearsall terial. Ward, knowing as he did the situa- cannot recover because he did not acquire tion of the property and what factors might title before the decree, and that there was properly be considered in estimating its val. 00 mutuality of contract. But it is plain ue, cannot now say that, because the state that from the beginning of Pearsall's efforts of California only received $1.25 per acre to compel Ward to perform a deed conveyfor several hundred acres, Pearsall paid ing good title from Pearsall's wife was held too high a price for the land. A circum- in continuing tender. The rule that mutustance in this connection is that Ward re- ality of remedy, whereby from the time à garded the lands of great value, for in 1906 contract is signed either party may by spehe rejected the telegraphic offer of $18 per cific performance enforce against the other, acre, saying he had contracted for the lands is not applied in instances like this, where as a permanent investment.

the parties to the contract well understood Was Pearsall guilty of laches in not ten- that the title was in another than the vendering performance sooner than he did? dor at the time of the contract of sale. We think not, because the evidence is that Under such a state of facts a tender of acthere was no misunderstanding between the tual conveyance of title before or at the parties that the time fixed for performance trial and before decree is sufficient to rewas when good title could be delivered. The store mutuality which will sustain specific parties themselves evidently acted upon such performance. Day v. Mountin, 137 F. 756, an understanding, for Ward employed coun- 70 C. C. A. 190; Wolleson v. Coburn, 63 sel in an effort to expedite the perfecting of Cal. App. 315, 218 P. 479; Finnegan v. titles. According to Pearsall, between 1909 Summers (Ky.) 91 S. W. 261; Maryland and 1918 he and Mr. Ward discussed matters Const., etc., v. Kuper, 90 Md. 529, 45 A. of title to the lands, and not until 1918 did 197; McDonald v. Bach, 29 Misc. Rep. 96, Ward indicate that he would refuse title. 60 N. Y. S. 557; In Producers' Company

The fact that summons in the present suit v. Barlow, 189 Cal. 278, 208 P. 93, the Suwas not attempted until March, 1921, is ex- preme Court of California said: "Unplained by the circumstance that it was in doubtedly a want of mutuality in the right March, 1919, that Mr. Ward wrote Pear- to specific performance * .. may be sall authorizing him to sell the land and removed, and is removed when there had stating he would still be willing to carry been a full and substantial performance of out the proposal he had made with refer- the contract. * • . The substantial exeence to the 2,000 acres. It was even as cution by plaintiff of its obligation would late as August, 1919, that Ward wrote to give present mutuality to the contract, alPearsall that he was willing that the time though in its inception it lacked it.” for selling be deferred to January 1, 1921. [3] Another objection is based upon the

Appellant argues that the contract was fact that, when the title was finally estab

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