Grant

Action for specific performance.

The plaintiff had judgment in the court below, and the defendant has appealed, upon the judgment roll alone, without any bill of exceptions. The court finds that the defendant made an agreement with the plaintiff for the sale and conveyance to him of a parcel of land, of which he was the owner, in the town of San Buenaventura, for the sum of five thousand five hundred dollars, of which he acknowledged in the agreement that he had received one thousand dollars, and the remaining four thousand five hundred dollars was to be paid on delivery of a deed, free of encumbrances, within sixty days thereafter; and the defendant agreed that upon receiving such payment he would execute to the plaintiff a good and sufficient deed conveying the .title to said premises. The agreement contained the clause: “ In case failure to make deed, money paid to be returned.”

On the same day with the execution of the agreement, the plaintiff gave to the defendant an order upon certain bankers in San Buenaventura for the sum of $725, to be paid when he should deliver the deed for said premises, which the court finds was accepted by him in lieu of the cash payment of a…