Marx

On April 11, 1898, the parties to this suit entered into an agreement in writing, whereby the plaintiff agreed to sell and the defendant agreed to buy certain real estate situate-on Grand Island in the Sacramento river, for a price therein specified. The defendant paid to the plaintiff one thousand dollars of the purchase money, but it was provided that if the title to the land should not prove to be good and marketable the plaintiff should repay said sum of one thousand dollars, but if the title should be found to be good and marketable the defendant should pay the remainder of the purchase price. Defendant, claiming the title was not good and marketable, refused-to cOüi- . píete the purchase, and demanded a return of his deposit. The plaintiff refused to comply, tendered a conveyance, demanded payment, and brought this action to compel a specific performance.

The plaintiff had judgment, and the defendant appeals. The facts were stipulated and stand as the findings of the court.

Thomas H. Williams (senior), the father of the plaintiff, died testate in 1886, leaving a large estate. His will was duly probated, and George E. Williams, the executor therein named, was duly appointed…