Severson v. Eide

PO’LLEY, P. J. This action was brought to foreclose a vendee’s right on certain land he had contracted to purchase from plaintiff. Defendant made a payment on the purchase price of the land and then defaulted on the balance. The vendee was to have possession of the land on and after the 1st day of March, 1920, but, by an arrangement between themselves, plaintiff was to remain in possession of the land as a tenant of the vendee. The trial court found the rental value of the land to be $2,960.98. At the trial defendants consented to a decree of foreclosure and waived their right of redemption; also waived any claim to the money they had paid on the purchase price of the land, but contended they were entitled to the rentals found to be^due by the court for the use of the land prior to the commencement of the action. The trial court foreclosed the contract, quieted the title to the land in the plaintiff, but awarded the defendant judgment for the said rentals in the sum of $2,960.98. Defendant’s claim to this money is based on the following clause in the contract: “And the party of the second part shall forfeit all payments made by them on this contract, and their right, title, and interest in all buildings, fences, and other improvements whatsoever, and such payments and improvements shall be retained by the said party of the first part in full satisfaction and in liquidation of all damages by him sustained, and he shall have the right to reenter and take possession of the premises aforesaid.” Defendants contend that, under this clause, it was only the sums they had- paid to plaintiff on the purchase price that were to be forfeited in case of their default in the payment of the balance. We cannot agree with this contention. As these rentals accrued, plaintiff applied them- on the purchase price of the land, and they- thereby became as much a payment on the purchase price of the land as though defendants had actually paid that amount into- the hands of plaintiff, and plaintiff had the rig'ht to treat this amount as though it had been- paid directly to him by the defendants. Th-is amount was not nearly sufficient to pay the [144] taxes on the land, and the interest on the deferred payment while the contract was in force, and which amounts defendants had agreed to pay. The court erred in awarding defendants judgment for this amount. The case will be remanded to the trial court, with directions to modify the decree so as to conform with this opinion. ANDERSON, J., not present.