Thrift v. Laird

COSHOW, J. It is not necessary to determine whether or not the contention that the error in the description in the deed from Burroughs to Thrift would prevent the plaintiffs from conveying a marketable title to the forty-acre tract. That it is a clerical mistake is beyond any question. The undisputed evidence is that by virtue of that deed the father of the plaintiffs went into possession of that land and remained in possession until his death and that the plaintiffs, as his heirs, had been in possession ever since and until they delivered possession to the defendant under the contract of purchase sought to be foreclosed in this suit. The law is well settled that a vendee in an executory contract of sale cannot remain in possession under the contract and at the same time claim a rescission of the contract: Sheehan v. McKinstry et al., 105 Or. 473, 481-483 (210 Pac. 167, 34 A. L. R. 1315), and authorities therein cited; Ward v. James, 84 Or. 375 (164 Pac. 370, 372). By failing to pay the interest as he agreed to do, and allowing the taxes to become delinquent, in *493 violation of the contract of sale, the plaintiffs were entitled to foreclose by the terms of the contract. “ * íí jn or¿er to put the vendor in default and claim a rescission of the contract the vendee must be ready to pay the entire purchase price, must offer so to do and demand a deed: * * ” Ward v. James, 84 Or. 375, 383 (164 Pac. 372), cited with approval in Anderson v. Hurlbert et al., 109 Or. 284, 297 (219 Pac. 1092). The defendant Laird told some of the plaintiffs that he could not pay either the interest or taxes. The plaintiffs were not required to postpone proceedings to foreclose because defendant was negotiating for a loan with only a possibility of succeeding. The decree appealed from is very favorable to defendant. The appellant contends that strict foreclosure is a harsh remedy, and equity will decree it only under peculiar and special circumstances. The Circuit Court did not decree strict foreclosure in this suit. On the contrary, he adopted as a conclusion of law that plaintiffs were not entitled to strict foreclosure. He directed a sale of the premises and made proper provision for the equitable application of the proceeds of the sale. The decree of the Circuit Court is, therefore, affirmed, with costs and disbursements in this court in favor of the respondents and against the appellant and his sureties. Affirmed. Rehearing Denied. McBride, C. J., and Bean and Brown, JJ., concur.