Bedell v. Barber

NOURSE, P. J.

Plaintiff sued to forfeit a contract of sale of real property and for restitution of the premises. The trial court found equitable reasons to relieve defendant of her default and entered a judgment decreeing that she should pay the balance due within 15 days upon tender of deed by plaintiff, otherwise defendant should stand foreclosed of any right or interest in the property. The plaintiff appealed from the judgment and the record does not disclose whether the deed was tendered by her or the money was tendered by defendant. If both tenders were made and accepted, or if the deed was tendered and payment was not made within the

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time fixed in the judgment, the appeal merely presents a moot case. If the plaintiff failed to tender a deed within the time fixed in the judgment the rights of the defendant to continue in possession and complete the sale were not stayed by the appeal. Thus the appeal presents the single question whether a vendee may be relieved from default in payments because of the equities of the particular case.

The trial court found that defendant was in default on numerous occasions in respect to her obligations under the contract; that, of the total purchase price of $22,500 plaintiff had been paid $8,700 in addition to attorney’s fees amounting to $530; that plaintiff’s attorney also acted as attorney for defendant for the purpose of making payments subsequent to these defaults; that he advised defendant that plaintiff desired payments and did not want to reclaim the property ; that defendant thereafter tendered payment of all sums due but that plaintiff refused the payment and executed an option to sell the property to a third person. These findings are not attacked and further recital of the facts would serve no purpose.

The principle upon which the case rests is stated in Pomeroy’s Equity Jurisprudence, section 433; “Wherever a penalty or a forfeiture is used merely to secure the payment of a debt, or the performance of some act, or the enjoyment of some right or benefit, equity, considering the payment, or performance, or enjoyment to be the real thing intended by the agreement, and the penalty or forfeiture to be only an accessory, will relieve against such penalty or forfeiture by awarding compensation instead thereof, proportionate to the damages actually resulting from the non-payment, or nonperformance, or non-enjoyment, according to the stipulations of the agreement. The test which determines whether equity will or will not interfere in such cases is the fact whether compensation can or cannot be adequately made for a breach of the obligation which is thus secured. ’ ’