Bayside Land Company v. Phillips

NOURSE, J.

Action to quiet title to real property in which defendants claim an interest by reason of a written contract, entered into between the parties hereto, by which plaintiff agreed to sell and defendants agreed to buy said property. The trial court rendered judgment in favor of defendants, from which plaintiff appeals. Said contract was found by the court to have been executed on or about August 28, 1913. The provisions material to this appeal are as follows: “Said lot being sold for the sum of seven hundred ($700) dollars gold coin of the United States, and the said parties of the second part, in consideration of the premises, agree to pay to the said party of the first part the said sum of seven hundred ($700) dollars, as follows, to wit: The sum of seventy ($70) dollars, cash, receipt whereof is hereby acknowledged; the further sum of ten ($10) or more dollars on or before the twenty-eighth day of each and every month hereafter until the full amount of principal with interest on deferred payments has been fully paid; all to bear interest from date until paid at the rate of six (6) per cent per annum, payable and compounded semi-annually. And the said

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parties of the second part agree to pay all state and county taxes, and assessments of whatsoever nature, which may become due on the premises above described. It is further agreed that time is of the essence of this contract, and in the event of a failure to comply with the terms hereof, by the said parties of the second part, said party of the first part shall be released from all obligations in law or equity to convey said property, and the said parties of the second part shall forfeit all right thereto.”

Appellant contends that defendants’ interest in said contract, and in the land therein involved, terminated on the twenty-seventh day of November, 1915, by reason of the exercise of the forfeiture clause therein contained. Defendants, on the other hand, deny plaintiff’s right to exercise such forfeiture by reason of the waiver of that provision of the agreement.

It appears from the record that on November 27, 1915, the total amount paid on said contract was $177.43, principal and interest; that on said date there was a total delinquency of $231.15, made up as follows: Nineteen principal payments, amounting to $190; accumulated interest, amounting to $35.18; delinquent taxes, covering a period of two years, amounting to $5.97. It also appears that the last payment on the contract, amounting to $7.50, was made July 30, 1915; that some time subsequent to that date (the time is not otherwise fixed by any evidence) Mrs. Harmer, one of the defendants, attempted to make a further payment of five dollars, but that plaintiff refused to accept it, stating that the contract had been canceled November 27, 1915; that on March 20, 1916, defendants offered plaintiff a check for $290, the full amount then delinquent, but that plaintiff refused to accept the same.