Davis v. Wilson

Mr. Justice McBride delivered the opinion of the court. The complaint is indefinite in many particulars where definiteness is certainly desirable, and a motion to make more definite and certain would have been very opportune. But we think th'at it states a cause of suit sufficiently to be good as against a general demurrer. 1. As shown by the complaint, time was not of the essence of the contract, which seems to have been not a mere option, but a contract of sale, upon which the plaintiff had paid $325. 2. Under such circumstances, before defendant could put plaintiff in default so as to escape specific performance upon tender of the balance due, with interest, he should have tendered a deed and demanded payment. Frink v. Thomas, 20 Or. 269 (25 Pac. 717: 12 L. R. A. 239.) 3. The law is adverse to forfeitures, and the intent to forfeit money, paid upon a contract of sale, must clearly appear before the court will permit the vendor to retain both the money paid and the land which is the subject-matter of the contract. See Frink v. Thomas, 20 Or. 269 (25 Pac. 717: 12 L. R. A. 239), and cases there cited. 4. Under an executory contract for the sale of real estate the vendor, in the absence of language in the bond or contract indicating some other intent, is the holder of the legal title as security for the’ deferred payments. Coles v. Meskimen, 48 Or. 57 (85 Pac. 67) ; Burkhart v. Howard, 14 Or. 39 (12 Pac. 79.) 5. Where no forfeiture is declared by the terms of the contract, or by its necessary implication, courts of equity will interfere to relieve a party against mere failure to [408] pay the purchase money upon the exact day. Lennon v. Napper, 2 Scholes & Lefroy, 682. In the case last cited Lord Chancellor Reesdale, speaking of the action of courts of equity, in contracts of this character, says: “They dispense with that which would make compliance with what the law requires oppressive; and, in various cases of such contracts, they are in the constant habit of relieving the man who has acted fairly, though negligently. Thus in the case of an estate sold by auction, there is a condition to forfeit the deposit, if the purchase be not completed within a certain time, yet the court is in the constant habit of relieving against the lapse of time.” Smith, the co-defendant, is in no better situation than Wilson, as it appears from the complaint that he entered into the contract with Wilson with full notice of plaintiff’s equities. The decree of the corcuit court is affirmed. Affirmed.