Blake v. Lemp

MORGAN, C. J.

On February 6, 1911, a written contract was entered into whereby John Lemp, in consideration of $1,600 to be paid to him by respondent, agreed to convey to the latter certain lots in Boise City. The purchase price was payable in instalments, the last of which became due, according to the terms of the contract, on February 6, 1913.

On July 18, 1912, Lemp died, testate, and appellant became executor of his will. On September 26, 1912, the mayor of Boise City commenced an action based upon the claim that the city was the owner of certain lands claimed by appellant to belong to the Lemp estate. At that time, and until after this action was commenced, it was believed by appellant and respondent, that the lots described in the contract of purchase were a. part of the tract claimed by the city. It was discovered prior to the trial of this case, and appears in the record, that the claim of the city did not include the lots in question.

On November 3, 1913, respondent offered to pay the amount of money due upon his contract of purchase and demanded that the executor convey to him, by good and sufficient warranty deed, fee-simple title to the lots, which appellant failed to do.'

Thereafter respondent presented a claim against the estate for $747.14, made up of the instalments he had paid upon the purchase price of the lots and of sums of money expended by him in payment of special assessments and taxes against the property. The claim was presented on January 26, 1914, and was disallowed. The time for presentation of claims provided for in C. L., sec. 5463, is shown by the record to have expired on June 4, 1913.

This action was commenced by respondent to recover the amount demanded by him and resulted in a judgment in his favor, from which this appeal is prosecuted.

If respondent’s claim for the return of money paid out by him pursuant to his • contract had been otherwise valid, it would be barred by C. L., sec. 5463, which provides: “All claims arising upon contracts, whether the same be due, not due or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever.....” (Verdier v. Roach, 96 Cal. 467, 31 Pac. 554; Barto v. Stewart, 21 Wash. 605, 59 Pac. 480; Tropico Land & I. Co. v. Lambourn, 170 Cal. 33, 148 Pac. 206; Maddock v. Russell, 109 Cal. 417, 42 Pac. 139.)

This claim never was valid. It is based upon the theory that appellant’s failure to convey title amounted to a repudiation of the testator’s contract and entitléd respondent to the return of the money. This is erroneous.' C. L., chap. 338, provides for the conveyance of real estate in the performance of such a contract as respondent had with John Lemp and sec. 5565 is as follows: “"When a person who is bound by contract in writing to convey any real estate, dies before making the conveyance, where such decedent, if living, might be compelled to make such conveyance, the probate court may make a decree authorizing and directing his executor or administrator to convey such real estate to the person entitled thereto.” Sec. 5571 provides: “Every conveyance made in pursuance of a decree of the probate court, as provided in this chapter, shall pass the title to the estate contracted for as fully as if the contracting party himself was still living and executed the conveyance.”

There is no provision of the statute which authorizes an executor to make a deed in the absence of an order of the probate court directing him to do so. Nothing appellant could have done would have prevented title being passed to respondent had the probate court, upon proper showing, so decreed. No claim for money against the estate arose out of the action of the executor in failing and refusing to make the deed. (Luco v. De Toro, 91 Cal. 405, 18 Pac. 866, 27 Pac. 1082; In re Garnier’s Estate, 147 Cal. 457, 82 Pac. 68; Sterrett v. Barker, 119 Cal. 492, 51 Pac. 695; 18 Cyc. 316.)

The judgment is reversed; Costs are awarded to appellant.

Rice, J., concurs. Budge, J., concurs in the conclusion reached.