¶1After stating the facts,
¶2delivered the opinion - of the court.
¶3The only question for determination in this case is whether the complaint states a cause of action.
¶4Sec. 3935 R. S. 1898, provides that: “When a person who is bound by contract in writing to convey any real estate, dies before making the conveyance, and in all cases when such decedent, if living, might be compelled to make such conveyance, the court may make a decree authorizing and directing his executor or administrator to convey such real estate to the person entitled thereto.”
¶5It appears that a legal contract was made to convey the land in question to the plaintiff, and that a part of the consideration was paid, and that the balance thereof was to be paid, after the death of the grantors, to Martha Ann Gammon Roberts, when she should acknowledge the receipt in full of the $300. When this was done the deed was to be delivered to the plaintiff. Plaintiff at the time entered into possession of the land, and has ever since remained in such possession. After the death of the grantors the money was offered to Martha Ann Gammon Roberts, and by letter she refused to receive the $300, or to sign or deliver a receipt therefor, and demanded in lieu thereof 7 acres of land covered by the deed.
¶6This offer to pay the amount due, and a refusal to accept the same or receipt therefor, coupled with her alleged hos*427tile acts in seeking to take possession of the property covered by the deed, and her refusal to accept the tender of $301 paid into court, must be treated as a refusal on her .part to acknowledge any right in the plaintiff under or by virtue of said deed, and a refusal to accept the offer made.
¶7The depositary of an escrow is the agent of both parties, . and a contract so made and deposited is not revocable at the will of either party or their representatives, but may be enforced under the provisions of Sec. 3935 R. S. If no date is fixed for the delivery or performance of the contract a reasonable time is intended and'ho default can attach until after a demand and failure or refusal to perform. 2 Warvelle on Vendors, p. 774.
¶8The delivery of this deed in escrow rendered it absolute when the condition upon which it was made was fulfilled. The evident intention of the parties was that if within a reasonable time after the death of the grantors the plaintiff should pay to Martha Ann, Gammon Roberts $300, evidenced by her receipt, then the deed was to be delivered' to the plaintiff. One dollar of this contideration was acknowledged paid, and the plaintiff went into immediate possession of the premises. The object of the delivery in escrow was to secure the payment of the price to Mrs. Roberts. When that was paid, or offered to be paid, and refused, the plaintiff had a right to the deed. The purpose of the escrow having been accomplished the plaintiff held the deed in the same manner he would have held it if it had been delivered to him in the first instance. The intention was that it should be the deed of the grantee when the condition was complied with, and when complied with it would take effect from its first delivery. 1 Devlin on Deeds, Secs. 328, 329; Price v. Pittsburgh R. R., 34 Ill. 33; Bostwick v. McEvoy, 62 Cal. 496; Rug-' *428gles v. Lawson, 13 John 285; Davis v. Clark, 48 Pac. 563; Wheelwright v. Wheehwright, 3 Am. Dec. 66.
¶9In onr judgment the complaint states a cause of action, that would entitle the plaintiff to recover. In the court below the plaintiff elected to stand upon his complaint and refused'to plead further, and the defendants elected to stand upon their demurrer. As the facts are not in dispute it would seem unnecessary to send the case back for a new trial.
¶10The judgment of the district court is reversed, with costs, and the. case is remanded with directions to said court to enter judgment in favor of plaintiff ás prayed for in the complaint.
¶11OPINION ON REHEARING.
¶12Since the above opinion was filed the defendants have moved this court for a rehearing of the case, on the ground, among others, that this court has no power, after overruling defendants’ demurrer to the complaint, to direct the entry of a judgment for the plaintiff in the court below, but should have remanded the cause with directions to permit the defendants to file their answer to the complaint, notwithstanding they made no request of either court in that respect. We do not fully concur with the able counsel on this subject.
¶13The record shows that the defendants’ demurrer to the plaintiff’s complaint was sustained in the court below: The plaintiff elected to stand upon his complaint, and refused to plead further, and the defendants elected to stand upon their demurrer, without filing an answer. Thereupon the court rendered judgment against the plain*429tiff, and directed execution to issue tberefor. From such judgment the plaintiff appealed to this court, asking a reversal of the same, and that this court direct a judgment in his favor. No request was made by defendants that they be allowed to file an answer to the complaint in case the demurrer was overruled; nor was the demurrer withdrawn. This court overruled the demurrer, set aside the judgment of the court below, and directed a judgment for the plaintiff, holding that as the facts were not in dispute, but were admitted, that the plaintiff was entitled to judgment thereon, it would seem unnecessary to send the case back for a new trial.
¶14After the appeal this court had jurisdiction of the case, and under Sec. 655 R. S. 1898, power “to reverse, affirm or modify the judgment appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had.”
¶15A similar question arose in an equity case in Vermont, (Bailey v. Holden, 50 Vt. 31) the court said: the defendants “having chosen to rest their defense upon the facts confessed by the demurrer, and carried the experiment to the last extremity, it was regarded unwarrantable to allow the litigation and the decision upon it to go for nothing, and permit the cause to be put back as it was upon the filing of the bill, where the only reason assigned for it, was, that ‘defendants’ solicitors had erred in their judgment of the law.’” Stewart v. Flint, 57 Vt. 216 (top paging).
¶16In Deloach, et al v. Neal, 5 Ark. 344, it is held that where a demurrer to a complaint is overruled it may regularly be followed by judgment; that the court is not bound to enter respondeat ouster; that if the defendant does not ask to plead over, the judgment is necessarily final.
¶17In Lowrey v. Andrews, 30 Ill. App. 521, it is held that *430when a demurrer to a declaration is overruled, if the defendant desires to plead over, he should ask leave to' withdraw his demurrer, and then plead; that unless the demurrer is withdrawn it remains of record as an admission of the facts alleged in the complaint, and the failure to withdraw it is an eléction to abide by it and justifies , a judgment on the demurrer.
¶18In McNasser v. Sherry, 1 Colo. 12, it is held that upon overruling a demurrer to a declaration, if the defendant does not ask to plead, judgment should be entered, and damages may be assessed by a jury.
¶19In the 6th Ency. Pl. & Pr. p. 366, it is said: “If after a demurrer is overruled the demurrant fails to ask leave to plead over, or answer, and abides by its demurrer, the submission of the case on demurrer is a final submission, and judgment thereon is final.” Fisher v. Gould, 81 N. Y. 228.
¶20An examination of the authorities cited in 6th Ency. PL & Pr., will conclusively show that the order made in this case was in strict accord with the practice in this and other states on this subject.
¶21The facts stated in the complaint, .and admitted by the demurrer, formed a proper basis for a judgment for the plaintiff on appeal to this court, and we-have been cited to no authorities to the contrary. It was doubtless within the discretion of this court to remand the case with directions to permit the defendants to plead over, even though no such request was made by counsel, provided the demurrer was withdrawn. The withdrawal of the demurrer was within the discretion of the party filing it. Its withdrawal could not be compelled by the court, and while it remains, it is an admission of the facts alleged in the complaint demurred to. The election to stand upon their demurrer was equivalent to a refusal to plead over, and to abide by the final result, even to judgment.
¶22*431It could hardly be just to a plaintiff, on this record on appeal, after being subjected to a protracted and expensive litigation, and after it had gone to final decision in the Supreme Court upon such a defense as the defendants elected and chose to mate, and upon which they insisted and stood in both courts, and after final judgment was entered against them upon the admitted facts, to allow the decision upon the whole question to go for nothing, so far as reaching the real justice of the contention is concerned, and allow the case to be placed back as it was upori the filing of the complaint in the first instance.
¶23The respondents also on their motion for a rehearing present their answer to the complaint, and ask to be allowed to file the same in the court below and to make their defense thereunder. In effect, they now waive their demurrer, and ask to plead over. Because this is the first time this precise question has been before this court and counsel may have been surprised at the holding thereof, and because the answer sets up that which may be a meritorious defense, this court, acting within the exercise of its discretionary power, will grant the request made by the respondents and modify the former order of this court, so that it shall read as follows: '
¶24It is ordered that the defendant’s demurrer to the plaintiff’s complaint be overruled, and that the judgment of the district court be reversed and set aside, with costs of both courts, and the case is remanded with directions to permit the respondents to file their answer- to the complaint on such terms as may be just, and proceed with the hearing of said cause. In other respects the motion for a re-hearing is denied and overruled.
¶25I concur in permitting the respondents to file their, answer, and in remanding the case for further proceedings.