Gaume v. Sheets

WILBUR, J.

This is an action by a vendor to quiet title against his vendees. The defendants, in their answer and cross-complaint, set out certain arrangements and contracts entered into by the defendant and one Wells at the time of the execution of the contract of sale and as a part of the transaction. Portions of the answer were stricken out and evidence in support of defendants’ claims was objected to by plaintiff and objection sustained. For the purpose of this decision we will, assume the facts to be as stated by the defendants in those portions of the answer stricken out. Upon such assumption it appears that one K. C. Wells was the owner of the property in question and that plaintiff held a mortgage thereon which was overdue and upon which he was threatening a foreclosure. An agreement was entered into on August 7,1915, between plaintiff and defendants and Wells, by which the defendants conveyed to Wells some real property owned by them-, valued at three thousand dollars, and in consideration thereof and of the agreement of plaintiff to cancel the mortgage thereon amounting to five thousand six hundred dollars, Wells conveyed the property to the plaintiff, and plaintiff entered into an agreement with defendants by which plaintiff agreed to sell and defendants to purchase the land in question for the sum of five thousand six hundred dollars, which amount was to be paid in monthly installments of fifty dollars, payable on the 10th of each month, and, in addition thereto, the entire proceeds of the crops grown on the property in question, until the amount of such proceeds, together with the fifty dollars payable each month, equaled the sum of one thousand two hundred dollars per year, and if such proceeds, together with the payments so made, did not equal said amount, to add thereto sufficient to make the total payment, for the year one thousand two hundred dollars. In addition thereto the vendees agreed to take possession of the property and care for it in a good and husbandlike manner, keep the property in good condition of repair, pay all taxes levied and assessed thereon, and to assume and pay the taxes for 1915-16 then a lien on the premises. The vendees entered into possession of the property and eared for the

[121]

same, but whether they did so in a good and husbandlike manner was one of the facts in dispute. Defendants defaulted in the payment due April 10, 1916. Time was expressly made the essence of the contract. The agreement in that regard is as follows: “It is understood and agreed that time is the essence of this contract, and should the parties of the second part fail to comply with the terms hereof, then, upon sixty days notice in writing, the party of the first part shall be released from all obligations in law and equity to convey said property, and the parties of the second part shall forfeit all rights thereto and to all money paid under this contract. And the parties of the second part agree to reimburse said party of the first part for any and all expenditures of whatsoever nature which may be incurred by said first party in clearing the title to the property herein agreed to be conveyed, and for the payment of all sums expended by said first party for taxes, assessments, encumbrances, adverse claims, insurance, repair, cultivation, irrigation, fertilization and protection.” Thereafter, on April 28, 1916, the vendor served notice upon the vendees, stating that they had defaulted in the payments to be made under the contract; that “by reason of said default the said Joseph Gaume has elected and does hereby elect to declare said agreement null and void and all right which you have acquired thereunder forfeited. You are notified that unless you surrender possession of said premises to said Joseph Gaume or his attorney on or before sixty days from the date hereof, that he will commence an action against you to quiet title to said above described premises, and will ask for a decree against you requiring you to pay all delinquent taxes and assessments, together with reasonable attorneys fees to be determined by the court for the quieting of the title to said premises.” Upon the receipt of said notice the vendees surrendered the possession of said property to the vendor. Defendants allege in their answer and cross-complaint, “that because of the acts of the plaintiff, as above specified, the defendants elected to treat the contract set out in paragraph I of plaintiff’s complaint as rescinded by the plaintiff,” and seek by such answer and cross-complaint to recover the sum of $350 which they had paid in monthly installments on account of the purchase price, and have it declared that the conduct of the plaintiff amounted to a rescission of the contract, and pray for a judg