Kunz v. Whitney

Eschweilee, J. Appellant contends that the terms of the land contract were such that, even after a retaking of possession of the land pursuant to a foreclosure of the land contract in which the identical $1,000 evidenced by the note herein in suit was considered as a part of the amount required to be paid by the vendees as a condition of their being-relieved of their default, he may still treat the $1,000 note as a subsisting enforceable obligation. The contract, however, provided that when paid the note shall apply as part of the purchase price. The note was not paid when the foreclosure action was commenced and the plaintiff then elected to treat it as a part of the subject matter to be disposed of in that suit; saying in effect that he desired either payment of this note and the other amounts then due or title to the land. If the defendants had paid the determined amounts they would have been reinstated in the contract and the note would have been paid and canceled. Their failure tq pay left the other alternative to plaintiff, which he accepted. He again became the owner and in possession of the land, and the contract between the parties was effectually canceled as of the time of the judgment. The note here, as between the parties, had no more effect than if embodied as a clause in the contract as a. promise to pay $1,000 as of the date when the note was to become due. When plaintiff took the land he thereby relieved defendants from any unperformed obligations of the contract, for he could not have both the land and also any future benefits [450] secured by the contract. His present position towards this $1,000 is inconsistent with the position that he assumed towards the same item in the perfected foreclosure proceedings. Having so elected he is bound. Shenners v. Pritchard, 104 Wis. 287, 80 N. W. 458; Foster v. Lowe, 131 Wis. 54, 110 N. W. 829; Waite v. Stanley, 88 Vt. 407, 92 Atl. 633, L. R. A. 1916C, 886 and note p. 893; Roney v. H. S. Halvorsen Co. 29 N. Dak. 13, 149 N. W. 688; 39 Cyc. 1923; Wotring v. Shoemaker, 102 Pa. St. 496; Steiner & Sons v. Baker, 111 Ala. 374, 19 South. 376. That a different rate of interest was provided to be paid on the note than on other payments required under the contract is immaterial. That the defendants may have benefited by the use of the property, rent and tax free, or that they may have decreased its value, cannot. affect the result herein. Such matters might have been proper for consideration in the foreclosure action or in an action to enforce the contract, if plaintiff had elected to bring such, but cannot be considered here. By the Gourt. — Judgment affirmed.