Emery v. DeGolier

Opinion, Mr. Justice Green : There was highly persuasive evidence given by the plaintiff on the trial, to show that the vendee under the original articles had entirely abandoned the premises covenanted to be sold, for at least two years and probably longer than that. By the express terms of the contract the vendee stipulated that she would reside on and improve the land; would pay five hundred and twenty dollars for the land in annual payments of sixty dollars each, the whole sum bearing interest from the date of the agreement; would pay all taxes and assessments whatever; that no pine timber should be cut until three fourths of the purchase money should be paid, “ and that in case of failure to make the payments aforesaid at the times herein-before stipulated — and interest — and the taxes — or shall leave said lot of land untenanted for the term of six months at any time previous to the full payment of the sums aforesaid — the [161] said party of the first part, his heirs or assigns, in either case shall have full power and lawful authority to sell and dispose of said lot of land to any other person; and this agreement so far as relates to the party of the first part hereof shall be void and of none effect from and after any such delinquency in payment thereof, or abandonment for six months as aforesaid— or failure to pay taxes thereon — and all sums that shall have been paid to the party of the first part on account thereof shall be forfeited and he shall not be liable to refund the same or any part thereof.” Only three of the annual payments were made, which in all did not amount to enough to pay the interest on the purchase money to the time of suit brought. If the plaintiff’s testimony was believed, the vendee left the premises in 1872 and they continued entirely unoccupied up to January, 1876, in such a condition as to justify an inference of abandonment. The vendee admitted on the witness stand that she left the place in 1872 and did not return till several months after her child was born, which she said was in December, 1875; so that the jury might have easily found that she did not enter upon the premises the second time until the summer of 1876. It does not appear that any information of this re-entry was given to the vendor. It was also proved that the vendor sold and conveyed the land to Emery, the present plaintiff, in September, 1876, and that the present action was brought on October 6, 1876. It is apparent therefore that the vendor exercised a clear contract right reserved to him under the articles when he sold to the plaintiff; and that the latter without any delay brought his action to recover the premises, the original vendee being then in possession. The vendor was not in position to bring an ejectment before the sale, unless possibly for an extremely short time, because the vendee was not in possession and the premises were entirely unoccupied, if the testimony of the plaintiff is believed. While he did not actually re-enter as for condition broken, he performed the full equivalent of a reentry by selling the land to another in accordance with the express provisions of the agreement of sale. In these circumstances it seems to us clear that the vendor did exercise his right of forfeiture with sufficient promptness, and that if the jury found the breaches of condition which authorized the vendor to re-enter or sell to another, the plaintiff’s title was [162] made out and lie should have had an absolute verdict without condition. In our opinion, the plaintiff’s second point should have been affirmed as the testimony stood upon the trial. We sustain the second and third assignments of error. We do not sustain the first because although the vendee was not sui juris her contract could have been enforced against the land without charging her personally. Judgment reversed and new venire awarded.