Mascall v. Erikson

• Decision Date: 10 December 1929
• Citation: 131 Or. 509,283 P. 2
• Parties: MASCALL v. ERIKSON ET UX.
• Court: Oregon Supreme Court

283 P. 2

131 Or. 509

MASCALL v. ERIKSON ET UX.

Supreme Court of Oregon

December 10, 1929

In Bank.

Appeal from Circuit Court, Grant County; W. W. Wood, Judge.

Action by Norbert H. Mascall against Boyd L. Erikson and wife. Decree adverse to plaintiff, and he appeals. Reversed and rendered.

On June 28, 1920, plaintiff, Norbert H. Mascall, and defendants, Boyd L. Erikson and Sylvia M. Erikson, entered into a written agreement by the terms of which defendants, for the consideration of $36,000 to be paid to them by the said Mascall, agreed to sell and convey unto him a certain tract of real property therein described, containing an acreage of 2,160 acres. Plaintiff agreed to pay therefor as follows $10,000 at the time of entering into said agreement, and the remaining $26,000 to be paid in annual installments of $2,600 on the 1st day of November of each year thereafter. The agreement provided that the purchaser should take immediate possession of the premises, and would use said premises in a good and farmer-like manner; that he would so depasture the same as not to destroy the native grasses and range thereon and would maintain the fences and make other improvements on said property as therein provided. It was further therein agreed as follows: That in case the said plaintiff should fail to make his payments as therein provided, or should fail to perform any and all of the terms and conditions of his agreement, all his rights under the contract should be terminated, and the said defendants might enter without notice and take full and complete possession of all of said premises sold and purchased, and that the rights of the plaintiff in said premises on account of payments made under said agreement should be subject to a settlement and liquidation by the parties thereto.

It appears from the evidence that, prior to November 1, 1923 the plaintiff (purchaser), who up to that time had paid to the defendants on the contract price of the land the sum of $12,066.70, notified the defendants that he was not able to make further payments on the said contract, and, on said date, failed and refused to make any further payment; that afterwards, on the 2d day of November, 1923, the defendants commenced an action in ejectment to recover from plaintiff the possession of said premises, and such proceedings were had that, by an agreement entered into between the plaintiff and defendants, plaintiff restored to the defendants the possession of said premises. Thereafter such further proceedings were had that it was decreed that there was due and owing the defendants from plaintiff on the contract set forth in the complaint and answer herein the sum of $16,343.25, with interest thereon. It was further decreed that said contract be foreclosed, and that the plaintiff pay to the defendants within 90 days from the date thereof the said sum of $16,343.25, with interest thereon from June 28 1920, at the rate of 6 per cent. per annum; that upon such payment the defendants make and deliver to the plaintiff a good and sufficient deed, conveying to plaintiff the fee-simple title to said property, and that, in case the plaintiff failed to make such payment in full within such 90 days, said plaintiff should be barred and foreclosed of all right, title, or interest in or to the said described premises. From such decree, appeal is taken to this court.

Equity will not enforce forfeitures.

William Smith, of Baker (Errett Hicks, of Canyon City, and Earl B. Moore, of John Day, on the brief), for appellant.

James T. Donald, of Baker (George H. Cattanach, of Canyon City, and Nichols, Hallock & Donald, of Baker, on the brief), for respondents.

HAMILTON, A. A. J. (after stating the facts as above).

From this record it will be seen that the question is presented as to the rights accruing to these parties after entering into the agreement by which the defendants were restored to the possession of the property theretofore contracted to be sold by them, and the plaintiff relinquished his said rights accruing under the original contract of sale. It will be observed that the written contract between the parties provides that, in the event of the purchaser's failure to make his payments as therein provided, or failure to perform any of the terms of his agreement, his rights under the contract shall be terminated, and the vendors are authorized, without notice, to take full and complete possession of the premises sold and purchased, and in such contingency the rights of the parties are provided for as follows:

"The rights of the second parties in said premises on account of payments made under this agreement shall be subject to settlement and liquidation by the parties hereto."

It conclusively appears from the evidence that, upon the failure of the purchaser to continue his payments under the contract, the vendors and purchaser mutally agreed that the property should be received by the vendors, and that the purchaser should relinquish all interest therein. We find from the evidence that the contract was to this extent rescinded and abandoned, without any oral agreement made in regard to the payments which had been made upon the purchase price by plaintiff. It seems to be the theory of respondents that the contract of sale was unaffected thereby and that they were in a position to recover the balance of the purchase price from the plaintiff; and the court, evidently acting upon that theory, gave the decree for this amount, with that of a strict foreclosure, and this constitutes the question of law which is presented to the court for determination.

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