Castleberry v. Hay

• Decision Date: 10 December 1902
• Citation: 70 P. 1055,8 Idaho 670
• Parties: CASTLEBERRY v. HAY
• Court: Idaho Supreme Court

70 P. 1055

8 Idaho 670

CASTLEBERRY v. HAY

Supreme Court of Idaho

December 10, 1902

CONTRACT OF SALE-BOND FOR TITLE-FORFEITURE-EQUITY.-In case of sale of lands whose value is not precarious nor fluctuating, and the execution of a bond for title by the vendor to the vendee and part payment of the purchase price by the vendee, who takes possession of said land under the contract, equity will not declare a forfeiture against the vendee, in the absence of any stipulation for a forfeiture in the contract, and the contract does not in terms make time of the essence of such contract.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Affirmed. Costs awarded to respondent.

Charles L. Heitman, for Appellants.

The essential elements which constitute a bona fide purchaser are three, to wit: 1. The payment of a valuable consideration; 2. The absence of notice of the rights of another party; 3. And the presence of good faith. (2 Pomeroy's Equity Jurisprudence, sec. 745.) Under the statutes of Idaho no parol agreement to convey land can be enforced, and where there is a written agreement, any valid extension of the time mentioned in said agreement must also be in writing otherwise the same objection applies to the extension of time. (Idaho Rev. Stats., sec. 6009, subd. 5; Platt v. Butcher, 112 Cal. 634, 44 P. 1060; Waterman on Specific Performance, sec. 487.) The new contract, if it can be called a contract, in which it was verbally agreed that plaintiff might have the land within thirty days, if he paid the money, was void under the statute of frauds, because not in writing. There can be no question of part performance under this second contract, because the plaintiff paid nothing upon it, and possession of the land was not given to him under this new contract. A parol sale of land without delivery of possession is void, though part of the price was paid, and it is immaterial that the contract was a renewal of one under which possession had been delivered to the purchaser, the former contract having been mutually abandoned. (Pomeroy's Equity Jurisprudence, sec. 1409; Maxfield v. West, 6 Utah 327, 23 P. 754.)

Willis Sweet, for Respondent.

The contention of the respondent is that the transaction described in the complaint was a sale. Under the terms of the transaction, the respondent took possession of the property. Defendant Wells admits delivery of possession in his answer. Again the terms of the alleged bond are: "Witnesseth, that the party of the first part [appellant] . . . . has bargained and sold unto the said party of the second part," etc. By the terms of the instrument then, the transaction was a "bargain and sale"; and delivery of possession is admitted by the answer as pleaded in the complaint. The transaction was not an agreement to sell; it was a "sale," and was followed by an immediate delivery of the possession of the premises, a possession open and notorious in its character, and under which respondent at once leased a portion of the premises and received the rents therefor. What remained to complete the transaction? To vest title in the respondent, free of all conditions? Simply the payment of $ 350, and as security for the sum, the appellant, Wells, was to hold the deed until the money was paid. This makes of the instrument in question a mortgage, and, as we view the original acts of the parties, and read the contents of the document itself, it is impossible to make anything else out of it. (3 Pomeroy's Equity Jurisprudence, secs. 1192, note 2, 1193, note 1; 1195; 1188, note 1 giving view of California courts, 1191; 1 Jones on Mortgages, secs. 20, 60.) The right to redeem: If it be conceded that the instrument upon which this action is based is in equity a mortgage, then the respondent could not be deprived of, nor waive his right to pay the debt and clear his title. (2 Jones on Mortgages, secs. 1038, 1039; 3 Pomeroy's Equity Jurisprudence, secs. 1193, 1219.) Appellant contends that respondent lost his right of redemption by giving up the bond. We have already shown that respondent could not waive his right to redeem; nor did he intend to. Equity abhors a forfeiture, nor will it be allowed, especially under the mistake testified to by respondent. Indeed, the extension of time by Wells to Castleberry was, if anything, a waiver of the forfeiture, could it be held that a forfeiture was possible under the contract. (1 Pomeroy's Equity Jurisprudence, secs. 381, 382, 433, 451, 455, 456; Steele v. Branch, 40 Cal. 6.)

QUARLES, C. J. Sullivan and Stockslager, JJ., concur.

OPINION

QUARLES, C. J.

This action was commenced by the respondent, as plaintiff in the court below, to obtain a judgment for the specific performance of the contract of sale and bond for a deed executed by the appellant Wells to said respondent on the twenty-seventh day of March, 1901, wherein said appellant Wells undertook and agreed, for and in consideration of the sum of $ 400, fifty dollars of which was there and then paid, and the further sum of $ 350 to be paid on or before the first day of November, 1901, to convey to said respondent those certain lands described in the complaint herein and in said bond for a deed. After reciting the consideration and...