Barrows v. Harter

[46]

HENSHAW, J.

Under a contract of sale of a certain piece of property, entered into between plaintiff and defendant herein, the vendee entered into possession, and threafter continuously remained in possession of the property contracted to be sold. Under this contract, and an extension thereof agreed to by the parties, defendant paid a small portion of the purchase price and certain sums by way of interest, altogether, as the court finds, aggregating five hundred and seventy dollars. He ceased paying interest in May, 1909, and continued in possession of the land thereafter without paying any part of the principal or interest as provided in the contract. On January 27, 1911, plaintiff gave notice to defendant of his rescission of the contract, offering to restore to defendant everything of value which he had received under the contract, upon condition that defendant do likewise. Subsequently, on February 4, 1911, plaintiff commenced this action. Defendant by answer and by cross-complaint expressed his willingness and ability to comply with the terms of the contract and make the payments therein contemplated, and further demanded from plaintiff the return of the moneys which he had paid upon account of the purchase price. The court, in addition to the findings indicated by the above statement of facts, further found that plaintiff had rescinded in accordance with law; that defendant was not able to comply with the terms of his contract; that the'value of the use and occupation of the premises which had been enjoyed by defendant since the date of the contract, for a period exceeding six years, was seven hundred dollars, and decreed a rescission of the contract and the restoration to plaintiff of his land and premises.

Upon this appeal the questions principally urged are that the court erred in not decreeing a repayment tp the vendee of the amount which he had paid, principal and interest, upon account of the purchase price, and this, without diminution on account of the value of the rents, issues, profits, use, and occupation of the premises in possession of the vendee. In support of this, certain detached utterances are taken from cases, these utterances declaring very properly that in rescission the vendee is entitled to a restoration of the moneys paid by him. Ordinarily he is so entitled. He is entitled, as well, to an allowance for permanent improvements, taxes paid, and