Luchetti

Appeal from a judgment for the plaintiffs and from an order denying the defendants’ motion form new trial. The suit was for the specific performance of a contract to the plaintiffs by the defendant Frost for the sale of land. The facts, as alleged in the complaint and found by the court, are as follows: By the terms of the contract, which was executed May 26, 1898, the defendant Frost agreed to sell and the plaintiffs to buy the land in question for the sum of $3,500, to be paid $5 at the time of the contract, which was paid accordingly, and the balance, $3,495, on or before June 2, 1898, Frost agreeing, on payment, to convey free of encumbrances. Time was made of the essence of the agreement. At the time of the contract the land was subject to two mortgages, the principals aggregating $3,170, and to a written option to purchase, given by Frost to one Rhodes, which was to expire June 13, 1898. On the 31st of May, 1898, the plaintiffs offered to pay the amount due upon receiving a deed conveying to them the property free of encumbrances, as' provided in the contract; but it is found the *765 defendant then and "there neglected and refused to execute such conveyance, and has ever…