Law Credit Co. v. Tibbitts

BEATTY, C. J.

In May, 1907, by contract in writing, the defendant agreed to sell and convey, and plaintiff’s assignor— Julia S. Wildey—agreed to purchase, for the sum of twenty-five hundred dollars, a town lot with the dwelling thereon. Five hundred dollars was to be paid at the date of the agreement, one thousand dollars in January, 1908, and the balance in May, 1908. Time was declared to be of the essence of the contract, and default in either of the deferred payments was to free the defendant of all obligations to convey and to work a forfeiture of all previous payments. Mrs. Wildey made the cash payment of five hundred dollars and in pursuance of the contract entered into possession of the premises early in October, 1907, and so remained until late in November, 1908, a period of nearly fourteen months, at the end of which time she was in default as to both of the deferred payments stipulated in the contract, but she had paid, pursuant to the contract, taxes and street assessment amounting in the aggregate to about thirty-three dollars. The value of the use and occupation of the premises was twenty-five dollars per month, aggregating for the time Mrs. Wildey was in possession three hundred and fifty dollars.

In this situation the parties agreed to rescind the contract of sale and purchase and reduced their agreement to writing, wherein, after reciting the making of the contract, the possession of Mrs. Wildey under it, her default in the stipulated payments, and the desire of the defendant to regain possession, it was “mutually agreed that said contract and agreement of sale of May 21st, 1907, be, and the same is hereby, rescinded, and the said Julia S. Wildey agrees upon the execution of this memorandum by Arthur G. Tibbitts and herself, that she will within ten (10) days thereafter deliver up possession of the said premises to the said Arthur G. Tibbitts with the furniture

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received from the said Tibbitts when the possession of the said premises passed to the said Wildey. In case of failure of either party to this agreement to perform same in accordance with the terms thereof, the same shall be void and without prejudice to the rights of either party thereto. The said Julia S. Wildey also agrees to deliver said property to the said Tibbitts without cloud of title or lien thereon by her imposed.