Odd Fellows' Savings Bank v. Brander

CHIPMAN, C. Action to foreclose the rights of a vendee under a contract for the purchase and sale of land. PlaintiE had the decree, from which, and from an order denying defend[256]ants’ motion for a new trial, defendants appeal. Findings of fact were waived, and the cause was heard upon a “stipulated statement of facts,” from which the following appear: “On June 10, 1892, plaintiff and defendant Brander entered into an agreement by which plaintiff agreed to sell and Brander agreed to purchase certain twenty-nine thousand acres of land, situated in the county of Sutter, for the sum of fifty thousand dollars, as follows: Five hundred dollars on executing the agreement; two thousand five hundred dollars thirty days from its date; three thousand dollars one year from its date, and the balance, forty-four thousand dollars, two years from date. Brander was given possession, with the right to rents and profits, and was to pay the taxes on the property and five hundred dollars a year as rental, but no interest on the deferred payments of the purchase price. The contract of sale also included certain levee district warrants to go with the land. Brander made the cash payment of five hundred dollars and the thirty-day payment of two thousand five hundred dollars, and five hundred dollars on account of rent, but no more; “said agreement has not been performed by said George L. Brander, or by anyone else in his behalf”; “plaintiff has complied with and performed all the terms and conditions of said contract on its part to be performed, and that plaintiff is ready and willing to and has offered to perform all the terms of -said contract on its part to be performed; and the plaintiff has duly demanded of the defendants that they carry out the terms of said agreement on their part to be performed, and that they pay the balance due under said agreement, but thait defendants have not made such payments, and have made no payment under said agreement other than those set forth in the complaint”; plaintiff paid all taxes after the first installment for 1893-94; Brander assigned his interest in the contract to the other defendants; on July 2, 1894, "0. L. Tilden, as attorney for the plaintiff, and in its behalf, served on said defendant, Henry Thompson, a written demand,” directed to each of the defendants, requiring them to comply with the terms of said agreement; “and the said Henry Thompson, on said second day of July, 1894, as the attorney for said parties (defendants), did admit service of said demand on behalf of all the parties to whom it was addressed by written indorsement thereon as follows: