Taylor

This action was brought by Taylor against Michael Joseph Kelly, to compel the conveyance to him of an undivided interest in certain real estate situate in the city and county of San Francisco. M. J. Kelly died before the cause was tried, and Annie A. Kelly, to whom he had conveyed the land after the commencement of the action, was substituted as defendant. The defendant had judgment, and the plaintiff appeals from an order denying his motion for a new trial.

A brief outline of the facts, as found by the court, is as follows:

That on April 9, 1887, Michael J. Kelly entered into an agreement in writing with one Driscoll to purchase the lands in question for the sum of six thousand one hundred dollars, and paid thereon twenty-five dollars, the purchaser to have thirty days for examination of the title. That on or about April 15, 1887, Kelly made a verbal agreement with the plaintiff, whereby the plaintiff should pay one-half of the purchase price on or before the expiration of the time allowed for examination of the title, and thereupon should be equally, interested with Kelly in the purchase. That on May 7, 1887, the title being satisfactory, Kelly demanded from Taylor the payment…