Paterson, J., dissenting. By the conveyance from Crocker, the plaintiff became vested with the legal title, and the right, as grantee of Crocker, to enforce the contract made between Crocker and Jackson. After the conveyance he stood in the same position Crocker would have held if no conveyance had been made. (Dwight v. Phillips, 48 Barb. 118; Civ. Code, secs. 1083, 1084.) Crocker could not have declared a forfeiture without giving defendants an opportunity to pay the balance, and thus avoid the. forfeiture provided for in the agreement. He never had claimed a forfeiture by reason of a failure to make payments at the times required by the contract, and a court of equity ought not to allow a forfeiture without a reasonable notice to defendants that a forfeiture would be declared unless payment was made.
Plaintiff paid Crocker and received his deed on October 15,1887. On November 3,1887, plaintiff paid Jackson $335.20, gave him his promissory notes for $1,000, secured by mortgage on the premises, and on the following day he demanded possession of the land; but defendants refused, and ever since have refused, to deliver the same, and no offer has ever been made by defendants, or either of them, to pay plaintiff the balance of the purchase price. In this I think Mrs. Jackson made a mistake. If Crocker had made a demand for possession of the premises, it would have been the clearest kind of a notice that he claimed a forfeiture on account of a failure to pay the balance of the purchase price. It then would have been the duty of the defendants, if they desired to avoid the forfeiture, to immediately, or as soon as they could do so, tender the amount remaining unpaid. The same duty was owing to plaintiff, the grantee [525]of Crocker. His demand was a proper one to make, and was unmistakable proof of his claim of forfeiture, and the right to possession under the terms of the contract. (Pomeroy on Specific Performance, sec. 393; Doe v. Birch, 1 Mees. & W. 402; Dendy v. Nicholl, 4 Com. B., N. S., 376.) Instead of offering to pay the balance due, as she ought to have done, Mrs. Jackson, the court finds, “ repudiated any right, title, or interest of plaintiff in or to said premises, and threatened him with violence if he attempted to take or have possession thereof, and said defendant ever since has denied, and now does deny and repudiate, any right, title, interest, or claim of plaintiff in or to said premises, or any part thereof.”
Under the contract, payment of the purchase price was a condition precedent. The parties intended —and their intention is expressed in clear language — that the fee should not pass until the purchase-money was fully paid. Before defendant Mary can claim a deed or the right to retain the possession given under the contract, she must pay the purchase price. She cannot claim under the contract, and at the same "time repudiate it. The legal title is in plaintiff. He paid a valuable consideration for it, and if the defendants, or either of them, have any defense to his claim for the possession, it must be an equitable defense. One who asks the interposition of a court of equity between himself and the owner of the legal title must show that he is not in fault. That he who seeks equity must do equity, and do it promptly, is a rule especially applicable to contracts of this kind, and particularly in this state. (Green v. Covillaud, 10 Cal. 324; 70 Am. Dec. 725.) Defendant Mary had notice of plaintiff’s claim as early at least as November 4, 1887, and had full notice of his rights two days later. This action was not commenced until May 8,1888. The court finds that each of the defendants was at all times able to pay the balance of the purchase price. Neither of them offered to do so. Six months had passed before plaintiff commenced this action. In view of the fact that no tender of the balance had been made up to that time, it is [526]not likely that a court of equity, after such delay without excuse, would have relieved the defendant Mary from the forfeiture that had been incurred, even if she had offered, in her answer, to pay the balance and all costs that had been incurred by the plaintiff; but not only was no such offer made, but she still repudiates the claim of the plaintiff, and, so far as the record shows, still denies that he has any interest in the property, or that the defendants owe him any duty. To entitle a party who is in default, under such circumstances, to relief, it must appear that he has promptly and in good faith offered to do what his contract required him to do, and neither infancy nor ignorance of his rights is a sufficient excuse. (Pomeroy’s Eq. Jur., sec. 452; Conrad v. Lindley, 2 Cal. 175; Steele v. Branch, 40 Cal. 11; Grey v. Tubbs, 43 Cal. 364; Hicks v. Lovell, 64 Cal. 18, 20; 49 Am. Rep. 679; Marshall v. Means, 12 Ga. 68; 56 Am. Dec. 444; Cross v. Carson, 8 Blackf. 138; 44 Am. Dec. 742; McClartey v. Gokey, 31 Iowa, 509; Jones v. Robbins, 29 Me. 353; 50 Am. Dec. 593; Wells v. Smith, 2 Edw. Ch. 83; Hancock v. Carlton, 6 Gray, 58, 59.)
The indulgence or non-action of the plaintiff from the time he demanded possession until the commencement of this action cannot be taken as a waiver of the forfeiture. (Kerns v. McKean, 65 Cal. 416.) “ The vendor is not bound to wait indefinitely after the failure of the purchaser to comply with the terms of his agreement. If the payments are not made when due, he may, if out of possession, bring his ejectment, and recover possession.” (Central Pac. R. R. Co. v. Mudd, 59 Cal. 590.)
The court below, recognizing the rule that “ he who asks equity must do equity,” saw that it would be inequitable to allow the defendant to retain the possession of the land without paying to plaintiff the balance of the purchase price. It was adjudged and decreed, therefore, “ that defendant Mary Jackson pay to plaintiff the sum of $47.21, balance of purchase price paid on the lots involved, with interest on the same at seven per cent per annum from date hereof.” In this I think the court [527]erred. There is no power in a court of equity to grant relief on a ground not claimed, and on which one of the parties has not had an opportunity to be heard. The question whether defendant Mary should be relieved from the forfeiture was not in issue, and the court could not consider it. (People’s Bank v. Mitchell, 73 N. Y. 415.) Even where evidence was given of an offer to pay the full amount due after the action was commenced, this court held that it was new matter which ought to have been pleaded. (Hegler v. Eddy, 53 Cal. 599.) In the case at bar, defendant Mary has never offered to pay the plaintiff anything, but has at all times denied that he had any interest in or right to the property, and has asserted that he conspired with her husband to cheat and defraud her out of her homestead right. Judicial amnesty of one who has, without just cause, expressed such repudiation, charges, and defiance continuously down to the date of the decision, it seems to me, would be mutilated equity. There is no precedent for relief from forfeiture under such circumstances.
As additional evidence of the injustice of allowing the defendants, after such conduct, to tender to plaintiff the balance of the purchase price, and require him to convey the legal title to them, it appears from the record that the plaintiff paid the full value of the property to Jackson, and that the latter and his wife have ever since remained in possession of the property. The record does not show affirmatively that the defendant Mary has had the benefit of the money paid by plaintiff to her husband; but, as the money paid was community funds, and they have always lived together, it must be presumed that they enjoyed it jointly.