Marquardt v. Fisher

• Decision Date: 10 February 1931
• Citation: 295 P. 499,135 Or. 256
• Parties: MARQUARDT ET AL. v. FISHER ET AL.
• Court: Oregon Supreme Court

295 P. 499

135 Or. 256

MARQUARDT ET AL. v. FISHER ET AL.

Supreme Court of Oregon

February 10, 1931

Department 1.

Appeal from Circuit Court, Multnomah County; John H. Stevenson Judge.

Suit by Carl Marquardt and another against Mary C. Fisher and another. Decree for plaintiffs, and defendants appeal.

Modified and affirmed.

G. E. Hamaker, of Portland, for appellants.

Elisha A. Baker, of Portland, for respondents.

RAND J.

Defendants on October 17, 1925, contracted to purchase from plaintiffs certain real property in the city of Portland, agreeing to pay the purchase money in stated monthly installments, and also agreeing to pay all taxes that should be assessed against the land. They took possession under the contract and later defaulted, having paid less than one-fourth of the purchase price and none of the taxes. While so in default plaintiffs brought this suit, seeking both a foreclosure of the contract and also a judgment and decree against defendants for the amount due under the contract at the commencement of the suit. After the cause had been put at issue, a trial was had, and plaintiffs had decree which, in effect, provided that, if defendants, within thirty days after September 24, 1929, should fail to pay the amount due under the contract at the commencement of the suit, then defendants' rights under the contract should be foreclosed and a writ of assistance be issued, directing the sheriff to put plaintiffs into the immediate possession of the property, and also that plaintiffs should have judgment against defendants for the amount due under the contract at the commencement of the suit. From this decree, defendants appealed.

This was a suit in equity to foreclose the contract because of defendants' failure to pay the purchase money according to the terms of the contract. Plaintiffs were not seeking a specific performance of the contract, but were asking to have defendants' equities under the contract foreclosed because of defendants' failure to perform the contract. Where a valid executory contract for the purchase and sale of real property is broken by the vendee's failure to pay the purchase money as stipulated in the contract, the vendor has in equity a choice of remedies. He may tender a deed and sue for the specific performance of the contract, or he may sue for a strict foreclosure of the contract. If the suit is for a specific performance of the contract, plaintiffs would be entitled to a decree requiring the vendee to pay the sums stipulated, as provided in the contract, while, if the suit is for a strict foreclosure, and the case is such that the granting of the remedy of strict foreclosure would not be inequitable, then the plaintiffs would be entitled to a decree requiring the defendants to pay the money due under the contract within such reasonable time as the court should direct, or be foreclosed of their equities in the property. If, however, the granting of the equitable relief of strict foreclosure would, for any reason, be inequitable, then it would be the duty of the court to decree that, if the purchase money be not paid within the time set by the court, the property should be sold and the vendor's interest be satisfied from the proceeds. Sheehan v. McKinstry, 105 Or. 473, 210 P. 167. 34 A. L. R. 1315. In any case where the relief sought is that of a strict foreclosure, the plaintiffs would not be entitled to have a judgment for the amount due and also at the same time have the contract strictly foreclosed. The payment of the money, whether under the compulsion of a judgment or voluntarily made, would operate to reinstate the contract and continue it in force, and thus preserve the vendee's equities under the contract, while the failure to pay the money would operate to entitle the plaintiffs to maintain a suit for strict foreclosure.

In other words, these plaintiffs were not entitled in the instant case to have both a judgment for the amount due and at the same time a foreclosure of defendants' equities under the...