Cosby

The defendant appeals from a judgment awarding to the plaintiff a sum representing the unpaid balance of the purchase price found to be due under a contract for the sale by plaintiff to defendant of a tract of land in the county of Kern. There is also an appeal from an order denying the defendant’s motion for a new trial.

The contract w*s executed on the twenty-eighth day of November, 1908. Part of the consideration was paid at that time and the remainder was due six months from the same date. The contract provided that “upon the payment of the balance of the purchase price said seller agrees to deliver to said buyer a good and sufficient deed of grant, bargain and sale, conveying said premises to said buyer free and clear of all encumbrances, and also to deliver to said buyer an abstract of title to said land, showing the title of said seller to said land to be free and. clear of all encumbrances. Said buyer hereby agrees to assume and pay the taxes on said property for the fiscal year 1908-9, and shall be entitled to immediate possession of said premises and to remove therefrom any mineral, oil, water, or other property.”

The court found that on the thirteenth day of December,…