defendants or the plaintiff to show that the conditions imposed by the testator in the special bequest had been complied with. It held that the allegation in the complaint that neither of the sons had gone to live or reside in the homestead at Punil since the death of the testator was the statement of a cause of action; that the plaintiff was not required to present evidence to show that the heir entitled to the special bequest had not been designated by agreement or by lot, and said:

"That is not the condition or the consideration of the special bequest but is incident of it, so much so that even if the designation had been made, the special bequest would still be ineffectual, inasmuch as the designated person was not living and residing at the family homestead in Punil."

In substance it held that it was the intent of the testator that the bequest should go to the son who should reside in the family homestead, and that he should do so was the condition on which he might enjoy it, and that it "could not be effective after proof that none (sic) of the defendants lives and resides in the homestead at Punil."

The Supreme Court reversed the judgment of the District Court and rendered judgment declaring the special bequest "ineffectual" and that the property subject to it should be divided among the heirs of the testator. A motion for reconsideration was denied and the court adhered to the judgIment which it had rendered.

[1] There are six assignments of errors which challenge sharply the rulings of the Supreme Court that the failure of either of the sons to occupy permanently the residence in Punil was the substantial condition of the bequest; that in default of such occupancy the choosing of one of the heirs by lot was not a compliance with the condition; that the failure to do so need not be shown; and that the complainant had sustained the burden of proof by showing that no one of the beneficiaries of the special bequest had removed his residence to Punil.

Of this section the Supreme Court said: "As the statute provides only that the condition must be fulfilled when the heir or legatee is informed thereof, after the death of the testator, without fixing any period of time for its fulfillment, we understand that it must be fulfilled within a reasonable time, according to the circumstances of each case counting from the time when he was informed of the condition, and in the case of a special bequest made in favor of the heirs and sons of the testator, the parties favored should have been informed thereof upon the death of the testator; therefore, the lapse of seventeen years until the date of the filing of the complaint cannot be regarded as a reasonable time."

The court also held that if it could not be presumed that the defendants were informed of the special bequest at the death of the father, they were informed in regard to it on February 21, 1919, the date of the amended complaint; and that, as the answer was not filed until April, 1920, the time between these two dates was more than reasonable for complying with the condition of the bequest.

The defendants presented no evidence in the District Court. It appeared from the record that a considerable portion of the estate of the testator was inherited by him from his deceased son, Candido, and is real estate in Porto Rico, whose value is about $100,000. The will, having been executed in Spain, must be construed in accordance with the law of that country.

The appellants contend that there is nothing in the statutory law of Spain nor the Civil Law which requires a condition for the performance of which no time limit is fixed, to be fulfilled within any period of time short of the lifetime of the beneficiary; and that, under the Civil Law, Marcial has his lifetime during which to perform the condition of the bequest; that if he does not have his lifetime to comply with it the time for its performance ought to have been fixed by the court. In support of this last con

"Sec. 783. A purely compulsory condition imposed upon the heir or legatee must be fulfilled by him when, after the death of the testator, he is informed thereof. The case is excepted in which the condition has already been fulfilled and therefore cannot be carried out anew."

This section is admitted by counsel for the appellants in his brief to be identical with section 795 of the Spanish Code.

Spanish Code and section 1095 of the Porto Rican Civil Code, which in substance provide that, if no time is fixed for the performance of an obligation and it can be inferred that it was intended to grant time for its performance to the one charged with it, the duration of the time shall be fixed by the court.

In their answer the defendants admit the special bequest and allege that Marcial and Herminio cast lots for it. They admit that

they now reside in Porto Rico, but allege that their residence there is temporary and that it is the intention of Marcial to reside permanently in the homestead in Punil.

While there is no allegation in the complaint that the defendants were informed, at the death of the father, of the special bequest in his will, they have admitted in their answer that they knew about it and that they acted in accordance with its terms by desigignating by lot which son should receive it. They also deny that they have not made the endowments for their sisters required by the special bequest, thus showing that they had knowledge of its terms. It was in evidence that Marcial made short trips to Spain

before 1914 and that his sisters were then living in the homestead and had been since the death of their father.

[2] It can be presumed that, as an heir and beneficiary, Marcial learned the contents of his father's will soon after his decease. The Supreme Court was warranted in making this presumption, and in holding that, as the condition that one of the sons should live and reside in the family homestead was not limited to any time for its performance, it must be performed within a reasonable time and that the period of 17 years since the death of the father was reasonable time for compliance with the substantial condition of the bequest. Having found that a reasonable time had been afforded for the performance of the condition, there was no necessity for the court to grant any further extension of time for the performance of the condition.

The intention of the testator which, under the civil law as under the common law, governs in the construction of wills, is evident. It was that one of his sons should take up his permanent residence in the family homestead, not alone to satisfy a natural sentiment, but also to care for his two sisters. To postpone his doing so for the period of his lifetime would plainly defeat this intent. We agree with the Supreme Court that residence in the homestead was the object of the bequest and that the designation of the son who should establish it was subsidiary to this, and that evidence that neither son had gone there to live after the lapse of 17 years was sufficient proof that the condition of the bequest had not been complied with.

The judgment of the Supreme Court of Porto Rico is affirmed, without costs in this court.

WARD v. PEARSALL.

(Circuit Court of Appeals, Ninth Circuit. January 5, 1925.)

No. 4243.

I. Logs and logging 2-Contract for sale of timber land held valid and enforceable.

A contract for the sale of timber land held not invalid for misrepresentations made by the seller and relied on by the purchaser nor for laches of the seller in not sooner tendering performance.

2. Specific performance 6, 92 (2)-Rule of mutuality of remedy not applied, where it is understood that title is in another than vendor; tender before or at trial held sufficient.

by from the time the contract is signed either

The rule that mutuality of remedy, where

party may enforce specific performance against the other, is essential is not applied, where it was well understood, when the contract was

made, that the title was in another than the vendor, and in such case a tender of actual conveyance of title before or at the trial and before decree is sufficient to give present mutuality and sustain a decree for specific performance.

3. Vendor and purchaser 129(1)—Contract held subject to state legislation reserving right of public fishing.

Where it was understood by the parties at the time of a contract for sale of land that title was to be acquired from the state, the con-tract was subject to state legislation reserving the right to the public to fish on all land sold by the state.

4. Vendor and purchaser

172-Vendor held

entitled to interest only from tender of abstract showing good title.

On a decree for specific performance in his favor, a vendor held not entitled to interest except from the time of his tender of an abstract showing good title.

Appeal from the District Court of the United States for the Southern Division of the Northern District of California; George M. Bourquin, Judge.

Suit by Clarence E. Pearsall against Willis C. Ward. Decree for complainant, and defendant appeals. Modified and affirmed.

Corbet & Selby and John R. Selby, all of San Francisco, Cal., and Elliott G. Stevenson and Leo M. Butzel, both of Detroit, Mich., for appellant.

J. N. Gillett, of San Francisco, Cal., and W. R. Bacon, of Los Angeles, Cal., for appellee.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

HUNT, Circuit Judge. This is an appeal by Ward, defendant below, from a de

cree for specific performance of a contract to purchase timber lands in California.

The lower court decided that all the equities were with the plaintiff, Pearsall, and decreed that Pearsall, within a limited time, should deposit an abstract of title and a good and sufficient deed, and that, if such deposits were in compliance with the contract, Ward, within 10 days from notice of the deposit, should deposit the purchase price, together with interest and costs. Because of failure on the part of Ward to comply with the provisions of the decree, plaintiff was awarded judgment against Ward. Defendant appealed.

The contentions of the defendant are that the contract was procured by misrepresentation; that the consideration for the contract was inadequate; that Pearsall was guilty of laches in not tendering performance; that he abandoned his contract; that there was no mutuality; and that there were errors in rulings upon the evidence.

We gather these facts: In 1902 Pearsall, a resident of California, tried to interest Ward, who was in Michigan, in acquiring a tract of some 7,680 acres of sugar pine timber in California. Ward wrote that he "would have to leave further timber land purchases in abeyance." But in January or February, 1903, Ward and Pearsall met in California, and together examined a map of the sections in which the timber was located, and, after conference, Pearsall and Ward, together with a timber cruiser whom Ward selected, examined the tract. The cruiser pointed out where the timber could be moved out. In response to Ward's request that the proposition be put in writing Pearsall wrote to Ward on July 2, 1903, stating that he held an undivided one-third interest in about 6,000 acres of sugar pine land in Mendocino county, .and that he had options on from 2,000 to 3,000 acres adjoining the 6,000-acre tract; that he had an arrangement by which he could acquire the remaining undivided two-thirds of the 6,000acre tract at the rate of $8.33% per acre, and he offered to turn over to Ward the undivided two-thirds of the 6,000-acre tract at the above-stated price with good and unincumbered title, and also to turn over with like title at like price the undivided twothirds of the additional tract of 2,000 to 3,000 acres, and take for himself the other undivided one-third thereof. The letter continued: "If I should then desire you to do so, you are to provide the whole purchase price of such tract of 2,000 to 3,000

acres at $12.50 per acre and take the whole title in your name, and I will then pay back to you one-third of said $12.50 per acre,

you to deed me the undivided onethird thereof upon such payment, and onethird of taxes paid by you on said land to that time. I will turn over the said tract of 8,000 to 9,000 acres as above stated as soon as title to same is perfected, and it is my expectation that I will be able to do so within a year from now. I will also furnish proper abstract of title which is to be passed upon by such attorney as we may agree upon." Ward replied, accepting Pearsall's proposition. On July 13, 1905, Ward wrote to Pearsall, offering to modify the contract by agreeing to take at $4.44% per acre Pearsall's one-third interest in the whole 9,000 acres, "being all the lands cov ered by your proposition of July 2, 1903, accepted by me. In other words, upon the conveyance to me in manner and form as provided in your said accepted proposition of July 2, 1903, of the whole San Hedron tract as aforesaid, I will pay to you two-thirds of the purchase price thereof at the rate of $12.77% per acre, and execute and deliver to you my note for the remaining one-third of said purchase price.

If you see fit to accept the modification of our agreement, as herein proposed, I will, of course, take in part performance of the modified agreement the 2,200 acres or thereabouts, which, as I understand, you are presently able to convey under the original agreement, and upon the conveyance thereof to me with title as provided in the original agreement. I will pay you at the rate of $12.77% per acre, twothirds in cash and the remaining one-third in my note." On August 24, 1905, Pearsall wrote Ward: "I accept your offer of $12.77% per acre for the whole tract, and will deed to you the same on the terms you

state.

It was evidently understood between the parties that, as the title to the lands, except the 2,200 acres, was in the United States, it would be necessary to have the United States list the lands to the state of California, and that the state would then issue its patents to holders of state certificates which covered the lands. Delays occurred in the issuance of certificates and patents, but both Pearsall and Ward were using their efforts to have the lands patented, but not until 1918 were the lands finally listed. Pearsall then wrote to Ward that he was ready to deliver the deed to the

lands and that he had deposited the deed with a bank to be delivered upon payment to the bank for his account the amount of the purchase price, plus $4,200 for taxes. Ward answered Pearsall, declining to proceed, and stating, among other things, that he was under no obligation to accept the conveyance because there was no enforceable contract, as Pearsall had misrepresented matters to him; the representation being that "the timber lands referred to could easily be made accessible for operation and removal of the timber by building a railroad into the timber connecting with the railroad then being constructed from San Francisco to Eureka." Ward wrote that he was willing to reconvey 2,200 acres that he had already purchased and paid for, and wished an adjustment of the whole controversy within 60 days from the date of the letter. As Ward failed to take up the deed, Pearsall brought this suit in February, 1919.

After suit was commenced, there was further correspondence between the parties, and on March 20, 1919, Ward wrote to Pearsall, authorizing him to sell the lands by January 1, 1920, stating that Pearsall could retain all he received over $12.50 per acre. In pursuance to this letter Pearsall did try to sell the lands but failed, and in February, 1921, Pearsall commenced publication of summons.

In the interim between the making of the contract of 1903 and 1911 Mr. Chamberlain, an attorney who represented Mr. Ward, and Pearsall corresponded, and Ward and Pearsall exchanged visits on several occasions, but nothing was said by Ward or his attorney to indicate any unwillingness on the part of Ward to go on with the contract. In September, 1906, Pearsall telegraphed to Ward that he had an offer of $18 per acre for the tract, but Ward replied: "No I do not want to sell San Hedron lands, having contracted for them for permanent investment."

Defendant testified that he relied upon Pearsall's representations as to accessibility and quality of the timber; that he was on the tract with his cruiser before he accepted Pearsall's proposition of July 2, 1903; that his examination was "superficial"; that he was told the timber would go down the Eel river valley; that in 1904 he and his brother-in-law spent two days on the land; that between 1908 and 1918 he did not receive any letter from Pearsall; that in August, 1919, he urged Pearsall to dispose of the timber land, and wrote to

him extending the time for sale to January 1, 1921, provided his proposal was promptly accepted. The proposal evidently was the authority Ward had previously given to sell with right to retain all Pearsall could receive over $12.50 per acre.

[1] We take the view that the letters describing the lands and their probable value for timber, written to Ward by Pearsall before any agreement was entered into between them, became irrelevant, because Ward in his pleading admits that in August, 1902, he wrote that he could not then take up the matter referred to in the letters, and because the evidence is that he did not take it up at all until after he himself had examined the land and had received the written proposition of Pearsall, and because he admits the making of the contract of 1903 to purchase a two-thirds interest in the lands, and the amendment of the contract in 1905, whereby he agreed to take the whole tract at $12.77% per acre. Defendant argues that Pearsall told him of a railroad in process of construction between San Francisco Bay and Eureka, and that he was induced by misrepresentations made by Pearsall that the timber was accessible for commercial purposes. But Mr. Ward had had long experience in the lumber business in Michigan before embarking upon this enterprise, and not only informed himself concerning the lands by a study of the map showing the location of the timber, but to obtain reliable, expert information employed his own cruiser, whom he had known in Michigan, to examine the property and to make a report upon the same. More than all this, upon receiving the report of his cruiser, Mr. Ward himself went to the lands, and, although he says his examination was "superficial," he must have gained a knowledge of conditions which satisfied him that the proposed contract was worth his while. It is clearly in evidence, too, that Ward's cruiser looked up a way by which the timber could be moved from the tract to a railroad, and that the cruiser and another man went to a point where they could see Elk creek and the country in general. The circumstances, therefore, are against Mr. Ward's contention that the examination was superficial, or that he was induced to make the contract by representations of Ward upon which he relied.

It is argued that Pearsall represented that there was a coal mine some 6 miles from the timber in the direction of where the logging road would go, and that in this

there was misrepresentation, as the mine was 18 miles from the lands. As there was no allegation in the pleadings to the effect that there was any reliance placed upon the location of any coal mine, or that it was an inducement to Ward to enter into the contract, the matter can be disregarded.

With respect to the substantive matter of accessibility of the land and the feasibility of building a railroad for logging an engineer and several witnesses of long logging experience testified that as a whole the land was a very good proposition, and that, except for a short distance, it was good for a logging railroad. Opposing opinions were expressed, but, inasmuch as the whole situation was considered by Mr. Ward before he made the contract, such opinions are immaterial.

So, likewise, is the contention that the contract price was more than double the actual value at the time of the sale immaterial. Ward, knowing as he did the situation of the property and what factors might properly be considered in estimating its value, cannot now say that, because the state of California only received $1.25 per acre for several hundred acres, Pearsall paid too high a price for the land. A circumstance in this connection is that Ward regarded the lands of great value, for in 1906 he rejected the telegraphic offer of $18 per acre, saying he had contracted for the lands as a permanent investment.

Was Pearsall guilty of laches in not tendering performance sooner than he did? We think not, because the evidence is that there was no misunderstanding between the parties that the time fixed for performance was when good title could be delivered. The parties themselves evidently acted upon such an understanding, for Ward employed counsel in an effort to expedite the perfecting of titles. According to Pearsall, between 1909 and 1918 he and Mr. Ward discussed matters of title to the lands, and not until 1918 did Ward indicate that he would refuse title. The fact that summons in the present suit was not attempted until March, 1921, is explained by the circumstance that it was in March, 1919, that Mr. Ward wrote Pearsall authorizing him to sell the land and stating he would still be willing to carry out the proposal he had made with reference to the 2,000 acres. It was even as late as August, 1919, that Ward wrote to Pearsall that he was willing that the time for selling be deferred to January 1, 1921. Appellant argues that the contract was

abandoned, and in support of this quotes a letter written by Pearsall to a bank at Eureka, Cal., dated July, 1918, wherein Pearsall instructs the bank to deliver the deed to Ward upon payment of certain named sums, adding that he reserved the right to withdraw the deed if not taken up within 90 days. The fact is, however, that the deed was left in the possession of the bank continuously until the time of the trial, and was always available to Mr. Ward, to whom it was again tendered at the trial. The argument that Pearsall treated the land as his individual property is met by the evidence that Pearsall did not sell the land, never told Ward that he claimed it as his own, and was diligent in attempting to obtain legal redress after January, 1921, or at the expiration of the time mentioned by Ward during which Pearsall was to try to sell the land.

[2] There is a contention that Pearsall cannot recover because he did not acquire title before the decree, and that there was no mutuality of contract. no mutuality of contract. But it is plain that from the beginning of Pearsall's efforts to compel Ward to perform a deed conveying good title from Pearsall's wife was held in continuing tender. The rule that mutuality of remedy, whereby from the time à contract is signed either party may by specific performance enforce against the other, is not applied in instances like this, where the parties to the contract well understood that the title was in another than the vendor at the time of the contract of sale. Under such a state of facts a tender of actual conveyance of title before or at the trial and before decree is sufficient to restore mutuality which will sustain specific performance. Day v. Mountin, 137 F. 756, 70 C. C. A. 190; Wolleson v. Coburn, 63 Cal. App. 315, 218 P. 479; Finnegan v. Summers (Ky.) 91 S. W. 261; Maryland Const., etc., v. Kuper, 90 Md. 529, 45 A. 197; McDonald v. Bach, 29 Misc. Rep. 96, 60 N. Y. S. 557; In Producers' Company v. Barlow, 189 Cal. 278, 208 P. 93, the Supreme Court of California said: "Undoubtedly a want of mutuality in the right to specific performance may be removed, and is removed when there had been a full and substantial performance of the contract. The substantial exe

cution by plaintiff of its obligation would give present mutuality to the contract, although in its inception it lacked it."

[3] Another objection is based upon the fact that, when the title was finally estab