Tristam

In this action judgment went for defendant and plaintiffs appeal.

The action is one to compel specific performance of a contract for the purchase of real property. It being an action in equity, respondent contends that this court has not jurisdiction of the appeal, which was directly prosecuted to it, the Constitution requiring that appeals in equity cases be taken directly to the Supreme Court. Through inadvertence a transfer of the case was not made to the Supreme Court at the time when the transcript of the clerk of the trial court was filed with the clerk of this court. Since the briefs were filed a transfer to the higher tribunal has been made and a retransfer to this court has been ordered by it. The action is therefore now properly before us for decision under the Constitution.

We have already stated that this is a suit in equity for specific performance, but a direct issue upon that question is presented in the briefs. Appellants, the vendors, contend that the action is one at law for the mere recovery of money. The complaint alleges the making of the agreement between the parties, the deposit with an'escrow-holder of certain escrow instructions concerning the proposed…