Hunt v. Thwing

Vanderburgh, . J. The plaintiffs are the executors and heirs at law of John Hunt, late of the state of New York, deceased, who died seised of the lands in controversy. By his will, alleged to have been duly probated in the county of Onondaga, in that state, his executors were authorized and empowered to sell and convey, in their discretion, any or all of his real estate. In pursuance of the power, one of the executors entered into a contract with the defendants for the sale of the land in consideration of the payment of the purchase price therein named on or before one year from the date of the contract, April 1, 1890. The defendants have made default in the payment of the purchase money, and the plaintiffs, who are all the parties interested, come into court, and ask that the court fix a time within which the defendants shall be required to perform on their part, and pay up the amount due according to the terms of the contract, or, in default thereof, that the contract be annulled, and the plaintiffs restored to their rights in the premises, including the possession. The demurrer to the complaint was properly overruled. The plaintiffs are willing to abide by the contract, and comply with its terms, and acknowledge and affirm its validity, and have a right to demand that the defendants perform or abandon it and all rights thereunder, including the possession. It is not simply the case of the cancellation of a contract as a cloud upon the title of plaintiffs, but rather the foreclosure of a con [495] tract, the validity of which they do not question, for the default of the defendants, in accordance with the practice recognized in Drew v. Smith, 7 Minn. 301, (Gil. 231.) Order affirmed. Note. The appeal of the Hillside Cemetery Association from the order overruling its demurrer to the complaint was argued here at the same time .and follows the foregoing. Order affirmed. (Opinion published S3 N. W. Rep. 870.)