Foot v. Bush

G-ranger, J. The defendant is the widow and administratrix of the estate of A. M. Bush. On the seventeenth day of February, 1892, Bush and the plaintiff entered into an agreement for the conveyance by Bush to plaintiff of a lot of land in Buchanan county, for the agreed price of one hundred and twenty dollars, twenty dollars of which was paid in hand. The remaining one hundred dollars was to be paid, fifty dollars August 17, 1892, and fifty dollars February 17, 1898, with interest at eight per cent. The following is a provision of the contract: “And it is expressly agreed, by and between the parties hereto, that the time and times of payment of said sums of money, interest, and taxes, as aforesaid, is the essence and important part of the contract, and that, if any default is made in any of the payments or agreements above-mentioned to be performed by the party of the second part, in consideration of the damage, injury, and expense thereby resulting, or that may be incurred by or to the party of the first part thereby, the agreement shall be void and of no effect, and the party of the second part shall have no claim, in law or equity, against the party of the first part, nor to the 524 above-mentioned real estate, nor any part thereof, and any claim, or interest, or right, the party of the second part may have had hereunder, up to that time, by reason hereof, or of any payments, or improvements, made hereunder, shall, on all such default, cease and determine, and become forfeited, without any declaration of the forfeiture, re-entry, or any act of the party of the first part. And if the party of the second part, or any other person, or persons, shall be in possession of said real estate, or any part thereof, he, or they, will peaceably remove therefrom, or, in default thereof, he, or they, may be treated as tenants holding over unlawfully after the expiration of a lease, and may be ousted and removed as such.” No payments were made and Bush served plaintiff with a notice to quit said premises for a failure to perform the contract. The date of this notice does not definitely appear, but we understand it to have been given some time in July, 1898. The intervener is a judgment creditor of plaintiff, and, before judgment, he levied on the premises by attachment, because of which he claims an interest; but his rights are wholly dependent on the merits of plaintiff’s claim to title. Defendant, to avoid the legal effect of his failure to pay as required by his contract, pleaded a waiver on the part of Bush, to the effect that he said that he did not need the money, and led plaintiff to believe that he could pay at any time. Plaintiff had improved the land, and there are averments and proofs as to the possession of the house after the notice to quit, which, in view of the record, are immaterial. There is no claim, nor could there be, that plaintiff is entitled to a decree, unless the waiver is established. If all the testimony could be considered, it fails to meet the averments of the petition as to waiver. Not a word uttered by Bush ought fairly to be construed as intending a waiver. It is pleaded that he said he 525 did not need the money, which would tend quite strongly to support the plea of waiver. There is not a word of proof to that effect. The only inference from plaintiff’s testimony is that he did not pay because he had not the money, and Bush did not ask for it, and he supposed he did not want it. But this evidence was taken under objection as incompetent, under Code, section 8689, because given by plaintiff, and Bush was deceased, and the defendant his administratrix. Take from the record such evidence as is incompetent under that section, and there is no basis whatever for a claim of waiver. The proofs do not in any way sustain the averments as to waiver. There should be a decree for defendants. — Reversed.