Hendrix v. Barker

• Decision Date: 07 October 1896
• Citation: 68 N.W. 531,49 Neb. 369
• Parties: HENDRIX v. BARKER ET AL.
• Court: Nebraska Supreme Court

49 Neb. 369

68 N.W. 531

HENDRIX

v.BARKER ET AL.

Supreme Court of Nebraska.

Oct. 7, 1896.

Syllabus by the Court.

1. In an executory contract for the sale of real estate, equity treats the vendor as the trustee of the purchaser, and the purchaser as the trustee of the purchase money for the vendor. This rule rests upon the doctrine that equity considers that done which ought to be done.

2. In an executory contract for the sale of real estate, the title retained by the vendor is security for the payment of the unpaid purchase money.

3. In such a contract, the vendor, upon default made by the vendee, may treat the contract as an ordinary real-estate mortgage, and foreclose it as such.

4. Where a suit is brought by a vendor to foreclose an ordinary contract for the sale of real estate as a mortgage, the character of the decree to be rendered must be determined by the particular facts and circumstances in the case and the equitable rights of the parties.

Error to district court, Douglas county; Hopewell, Judge.

Action by Joseph Barker and another against Margaret Y. Hendrix to foreclose as a mortgage a contract for the purchase and sale of land. From a decree for plaintiffs, defendant brings error. Affirmed.Warren Switzler, for plaintiff in error.

B. N. Robertson, for defendants in error.

RAGAN, C.

On the 15th of March, 1887, Joseph and George Barker, as parties of the first part, and Margaret Y. Hendrix, as party of the second part, entered into a contract in writing, in and by the terms of which the Barkers agreed to sell and convey to Hendrix certain real estate situate in the city of Omaha. Hendrix, on her part, agreed to pay for said real estate $2,700, a part of which was paid on the date of the execution of the contract, and the remainder to be paid in installments of $500 on the 15th day of March of the years 1888, 1889, 1890, and 1891; the deferred installments to draw interest at the rate of 8 per cent. per annum. The contract provided: “And the said party of the second part does hereby * * * covenant, promise, and agree to and with the said parties of the first part * * * to pay the residue of the consideration price for said premises.” There was also in said contract the further provision: “These presents are upon the express condition that, in case of the failure of the said party of the second part * * * to perform all or either of the covenants and promises on his part to be performed, then said parties of the first part * * * shall have the right to declare this contract void, and thereupon to recover * * * all the interest which shall have accrued upon this contract up to the time of declaring it void, as rent for the use and occupation of said premises, to hold and retain the moneys paid on this contract by said party of the second part as liquidated damages, and to take immediate possession of the premises.” Mrs. Hendrix failed to make some of the payments due from her to the Barkers according to the terms of said contract, and thereupon the Barkers brought a suit to the district court of Douglas county against Hendrix, to foreclose this contract as an ordinary mortgage. In their petition the Barkers prayed for an accounting between themselves and Hendrix, and for a decree that, unless the amount found due should be paid within a day fixed, the interest of Hendrix in said real estate might be sold to make and raise the sum found due; and, in case said real estate failed to sell for a sufficient amount to pay the debt found due to them from Hendrix, that they might have a deficiency judgment against her for the remainder.

The only defense interposed by Hendrix to this action--if that can be called a defense--was that she claimed that she was entitled to forego all claims against the Barkers for payments that she had made upon the contract, and that they should take possession of the real estate, and be discharged of any liability to convey it to her. The court, however, treated the contract as an ordinary real-estate mortgage upon the premises, and made a finding that, in default of the payment of the sum found due within a certain date, the interest of Hendrix in the land should be appraised, advertised, and sold, to make and raise said sum of money. From this decree Hendrix has prosecuted to this court a petition in error.

1. The counsel for Mrs. Hendrix states his contention here as follows: “The plaintiff in error contends that the court erred in not entering a decree of strict foreclosure, as provided by the contract entered into by the parties, and erred in entering a decree ordering a sale of the premises over the offer of the plaintiff in error to submit to a forfeiture and strict foreclosure.” But the contract between the parties does not provide that Mrs. Hendrix at her option may waive her claim against the Barkers for any payments that she has made...