question on an appeal from an adverse judgment in such action, that the heirs had not approved the contract.

4. An action does not lie by one who has contracted with a broker to purchase land owned by heirs, to recover a deposit made on account of the purchase price, on the ground that there is a possibility that there may be claims against the estate which would be a lien against the property, where the defendant offered to procure a bond to pay any such claims, and offered "a deed conveying a good title to the property free from encumbrance," and the plaintiff failed to comply, or tender compliance, with his part of the contract. (Following Newman v. Baker, 10 App. D. C. 187.)

No. 2221. Submitted April 6, 1911. Decided May 3, 1911.

HEARING on appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia, directed by the court, to recover money deposited by the plaintiff with the defendant under a contract for the purchase of land.

Affirmed.

The COURT in the opinion stated the facts as follows:

This is an appeal from a judgment upon a directed verdict for the defendant, Louis P. Shoemaker, in an action at law to recover the sum of $1,000 deposited by the plaintiff, Adrian G. Wynkoop, under a contract for the purchase of certain real

estate.

Alexander F. Mathews, of Lewisburg, West Virginia, died in December, 1906. Surviving him were a widow, three sons, and a daughter (sole heirs of decedent), all of age on August 1st, 1907, and capable of executing a valid deed or contract. At the time of his death, Mr. Mathews was seised of a tract of land in the District of Columbia of about 60 acres, fronting on Rock Creek road and known as the Enock Moreland tract. He left a holographic will, which was duly admitted to probate in West Virginia, but which was incapable of probate in this. District so as to pass .title to real estate. Code, sec. 1626. Under this will the three sons, Mason, Charles G., and Henry A. Mathews, were named as executors, and were authorized to

make sales of the testator's property in their discretion, without the aid or supervision of any court. The estate was to be distributed in accordance with the statutes of the state of West Virginia regulating the disposition of estates of intestate decedents.

On August 9, 1907, the defendant Shoemaker signed a contract of sale of said Enock Moreland tract to Eugene M. Farr, "subject to the approval of the owner," at $800 per acre, $10,000 to be paid at the time of the delivery of the deed, and the execution of a deed of trust to secure the balance. A deposit of $500 was acknowledged, and the contract was to be consummated "within thirty or sixty days from this date; if it has not been done within thirty days, a further deposit of five hundred ($500) dollars shall be made; and the balance of the cash payment shall be paid and deed of trust given in any event within sixty days from this date, and the entire transaction closed as herein stipulated." It was further stipulated that "failure on the part of the said Eugene M. Farr to comply, as herein stated, within said time, shall cause a forfeiture of the said sum or sums, and they shall be retained by me as an agreed liquidation of damages, and this proposed sale shall be off and receipt void; time being hereby made of the essence of this agreement." The contract further provided that if the sale should be consummated "by the payment of the sums stipulated to be paid at the time specified, a deed of said property of the usual special warranty form” would be given to said Farr or his assigns, and a deed of trust accepted. It was further stipulated that "if the title to said property should not prove to be good and free from encumbrance, the deposit now made, together with any future deposits which may be made, shall be returned to said Eugene M. Farr, and this agreement to sell shall be off and receipt void, without any liability having accrued upon me or those whom I represent." The contract contained the signatures under seal of "Louis P. Shoemaker, Agt..for Mathews Est.," and of Mr. Farr. On the 13th of August the Mathews brothers, as "representatives of the estate of Alexander F. Mathews," con

sented to and approved the provisions of the contract under seal, each adding "Exr." to his signature.

On August 23, 1907, Mr. Farr duly assigned unto the plaintiff, Wynkoop, all interest in said contract, and on August 24th the plaintiff, because of unavoidable delay in making the deposit required under the contract, which it appears had not then been made, procured an extension of the contract by having the date thereof changed to August 24th, thus fixing the date of consummation as October 24, 1907. On August 26, 1907, plaintiff's deposit of $1,000 was received by Shoemaker.

After making his deposit the plaintiff returned to his home in Charles Town, West Virginia, and tried to organize a company to exploit the property. Plaintiff testified: "I stated to defendant about three or four weeks, maybe longer, before the option expired, in his office, that a deed could not be made within sixty days, and I had before that time attempted to interest others, real estate agents in this property; at this visit I demanded back my money and served the following paper upon him as stating the grounds of objection to the title." The paper referred to was neither signed nor dated. The grounds of objection therein stated are as follows: "Before you could get a good title to this property it would be necessary for you to have the regular court proceedings in the District instituted by the heirs, in order to complete the record; by reason of the death of Captain Mathews, the title company will only certify that the property would be subject to the debts of the estate, and that the deeds are good according to the recitals." The defendant refused to refund, saying, according to the testimony of the plaintiff, that it would be necessary to consult with the executors of the estate. Plaintiff further testified: "Afterwards I went to him (the defendant) another time, and told him I could not get any of the real estate agents in town to take the option, and I came to get my money back;" that on the day the option expired, plaintiff, accompanied by his counsel from West Virginia, again interviewed the defendant, and demanded back his deposit, which demand was refused.

The witness testified under cross-examination that it was his

mear.

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Statement of the Case.

[37 App. intention to purchase the property with three other parties who had agreed to join him in the transaction. Thereupon he was asked to state the location of those parties, and was required to answer over the objection of his counsel. The plaintiff further testified under cross-examination that he wrote the defendant on October 25, 1907, and the letter was introduced in evidence by the defendant over the objection of the plaintiff. This letter, it will be noted, was written the day following the expiration of the option. In it Mr. Wynkoop said: "As you expressed a desire that I should not lose my man, and that you were quite anxious to sell the 60-acre tract, that evening I wrote to my Baltimore man, Mr. Samuel BealNow, I have said nothing to Mr. Bealmear about the title nor he to me, it might be his man might not object to it. Now, I have done this with no intention of asking you for an extension of the sixty-day option, that ran out last night, and which I do not ask to be extended, but to show you my willingness to do all I can to aid you in the sale of the property, and if you do not approve of it, or have optioned it to someone else, please wire me at once, and I will wire Mr. Bealmear not to longer offer it. Should anything come out of it, you can give me such part of the profit you see fit, for I have spent several hundred dollars trying to dispose of it. Please let me heard from you." The answer to this letter by the defendant, under date of October 26, 1907, was identified by the plaintiff, and received in evidence over plaintiff's objection. In this letter the defendant, while not waiving accrued rights, assured the plaintiff, notwithstanding the expiration of the option, that "my clients stand ready to convey a good and unencumbered title to the property so long as it is for sale, to any purchaser you may produce upon the terms already considered between us, provided I have not made any other disposition of the property before offer is received from you, and so long as my principals do not change the price and terms of sale."

The plaintiff then identified a letter, dated October 21, 1907, which he testified was about the date upon which he had left

the typewritten memorandum with the defendant. In this letter of October 21, which was introduced in evidence, the defendant stated that even if the will was not sufficient to pass title to the property, "all the heirs of Mr. Alexander F. Mathews are adults, competent to sign a deed, and ready to do so, upon the compliance with the provisions of the contract made with Mr. Farr, and assigned as I have been advised by you." After stating that Mr. Mathews was a wealthy man owning much real estate, and that all situate in the District of Columbia was unencumbered, the letter continued, "Were it necessary, I am sure there would be no difficulty in giving a bond to indemnify the title company, and secure a guarantee certificate of title which is sometimes issued by the title companies, or I can go into the court by a very short proceedings and the court will direct the conveyance to be made to you or to any person entitled to it, free from encumbrance; in other words, there is no difficulty in giving you a deed conveying a good title to the property, free from encumbrance, if you are prepared to comply with your part of the contract, and it is my purpose by this letter to give you notice of this fact, and request that you will promptly advise me in whose name you desire the deed to be made."

Plaintiff further testified that he had at no time advised the defendant to whom the deed was to be made; that he did not want any deed; that he told the defendant "his deed was not any account;" that the plaintiff "did not tender him (the defendant) the $10,000 to be paid in cash within the time specified, sixty days; I refused to accept his deed, such a deed as he offered to give signed by the executors; he never offered me any deed from the heirs."

The plaintiff thereupon offered in evidence three letters written by him to the defendant, dated October 26, October 28, and October 30, 1907, respectively, relating to the return of the deposit. To the refusal of the court to admit those letters, an exception was noted.

The plaintiff also excepted to the action of the court in refusing to receive in evidence the record in equity cause No.