TURNER v. BALDWIN

CHASE, J.:

At the partition sale Turner could have purchased the property at $8,000, and as between the parties to the action it was only necessary for him in settlement of his bid to pay to the parties of the second part in the agreement according to the priorities of their claims one-half of such bid. At any time during the year Turner could have sold the property to any person for $8,000 and applied one-half of the proceeds thereof in payment of the claims of the parties of the second part in the agreement according to their priority. The only limitation on Turner's "power to bargain, sell and convey the same and the whole thereof at any time" was at the expiration of the year when, according to the agreement, the parties of the second part thereto had the right to elect between paying Turner $4,000 and accepting a deed from him of the entire property, or of compelling him to pay them $4,000 and have him retain the title to the entire property. It was the duty of the parties of the second part to said agreement to exercise such election immediately, or at least within a reasonable time after the expiration of said year. It is conceded that they did not at the expiration of the year exercise such election in favor of taking the property and there is no evidence of any desire so to do for about fifteen months thereafter. The record clearly shows that Turner understood that the parties of the second part to the agreement, and each of them, had exercised their election in favor of his having the property. He, with full power to sell said property at $8,000, elected, so far as it was possible for him so to do, to retain the property for himself at that price. The trial court has found that at or about the expiration of the year mentioned in said agreement, the parties of the second part thereto elected that the said Turner should take the half interest of said Moore in said property and pay therefor the sum of $4,000 as provided in said agreement, and that said Turner was at that time, and ever since has been, ready and willing to carry out said agreement on his part, and has tendered performance on his part thereof. If such finding of the trial court is sustained by the evidence, there can be no question about the correctness of the conclusions drawn therefrom. The election of H.K. Baldwin Co. was ratified and confirmed by their receiving from Turner the amount of their judgment and satisfying the same. The evidence to sustain the finding that Barnet Brothers and Helen L. Barnet elected to take their money and let Turner have the property under the agreement is overwhelming. Frank W. Moore, assuming to act for Jessie C. Moore, his wife, elected to have Turner take the property. Jessie C. Moore not only did not do anything toward purchasing Turner's interest in the property, but she knew that Turner paid H.K. Baldwin Co. their judgment under the agreement at the time when it was paid, and she allowed her husband to have possession of the tax certificates owned by her with Turner, and never protested in any way against the course that was being pursued by Turner until fifteen months after the time mentioned for the judgment creditors to exercise their election. The delay by Turner in carrying out the agreement on his part seems to have been occasioned by his inability to obtain the tax certificates of 1895 and their transfer to him, as provided by the decree in partition. These certificates were owned by Turner and Jessie C. Moore, but Turner did not have possession of them. Frank W. Moore claimed that they had been lost, but subsequently they were found, and a meeting was arranged between Turner and said Frank W. Moore for the avowed purpose of closing up the land transaction. Frank W. Moore appeared pursuant to the arrangement and had possession of said tax certificates so owned by his wife and Turner, and assumed to act for Jessie C. Moore in connection therewith. Turner had a tax search from the Comptroller's office, and a computation was made of the amount due for taxes and also the amount to be paid to each person pursuant to the agreement. Turner was prepared and ready to pay $4,000 as provided by the agreement. Moore then claimed that the Barnet judgments were too large, and asked that the checks for the several amounts under the agreement should be made payable to him personally, and stated that he would go around and settle with the others, and in that way get something out of it for himself. Jessie C. Moore would not realize anything on her judgments if the prior judgments and claims were paid in full. Turner refused to make the checks payable to Frank W. Moore individually, but offered to give him checks payable to the several parties to the agreement. Moore left without taking the checks. After the statements made by the several parties, to the effect that Turner should have the property under the agreement, a mortgage was given on the property by Turner to The People's Bank of Potsdam, and an agreement was made by Turner to sell the property. During the delay in closing the transaction the property increased in value, and Jessie C. Moore, in December, 1899, purchased the Barnet judgments and entered into some kind of an agreement to sell the property to a third person. Thereafter she obtained the signatures in her behalf of all the parties of the second part in the agreement electing to purchase the property of Turner, and tendered to him $4,000 and demanded a deed of the property, which he refused to give. The trial court has found that this was not an election under the agreement, and that the parties to such election had no power at that time to bind Turner under the agreement, for the reason that their time so to do had already expired. The tax certificates remained outstanding in the name of Jessie C. Moore and said Turner. Demands were made by each upon the other, and these actions were brought by each to require the other to perform his part of said agreement, and by stipulation they were tried as one action. The judgments are sustained by the facts as found by the trial court. The entire controversy is mainly one of fact, and the judgments depend upon the correctness of the findings of fact. We are of the opinion that the findings are not against the weight of evidence, and that the judgments should be sustained. The judgments and orders should be affirmed, with one bill of costs in favor of the respondents against the appellant.