Mosso v. Lee

• Decision Date: 04 February 1931
• Docket Number: 2926.
• Citation: 295 P. 776,53 Nev. 176
• Parties: MOSSO v. LEE et al.
• Court: Nevada Supreme Court

295 P. 776

53 Nev. 176

MOSSO v. LEE et al.

No. 2926.

Supreme Court of Nevada

February 4, 1931

Appeal from District Court, Clark County; Wm. E. Orr, Judge.

Action by Annetta Mosso against Hans Lee and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Stevens Henderson & Nolan, of Las Vegas, for appellant.

Harley A. Harmon and Chas. Lee Horsey, both of Las Vegas, for respondents.

COLEMAN C.J.

This is a suit to quiet title to real estate. Decree was entered in favor of the defendants, and plaintiff has appealed. We will refer to the parties as they were designated in the district court.

The material facts are as follows:

On June 8, 1927, one McLaurine and wife, the then owners of the land in question, entered into an agreement to sell the same to Hans Lee and Letty Spencer for the sum of $3,200, of which $500 was payable in cash, $150 payable July 15, 1927, and $150 on the 15th of each succeeding month until the full purchase price was paid; that the purchasers should pay all taxes and assessments lawfully levied upon said property when due; that the first parties should execute a good and sufficient deed and place the same in escrow to be delivered to second parties upon the making of all payments as agreed. It was further agreed between the parties that time is of the essence thereof; that second parties take possession of said premises pursuant to said agreement.

Between June 8, 1927, and June 8, 1928, the second parties paid to said first parties on account of said purchase price the sum of $1,850, leaving a balance due of $1,350, and made improvements upon said premises of the value of $1,4000.

On July 7, 1927, Hans Lee acquired all of the right and interest of said Letty Spencer in said lands. Prior to April 16, 1928 the plaintiff acquired all of the rights of said McLaurine and wife under said agreement. On the 16th of April, 1928 plaintiff and defendant Hans Lee entered into an agreement whereby an extension of time was given the said Hans Lee to make the payment falling due on the previous day. On June 11, 1928, McLaurine and wife conveyed the property to this plaintiff. On the 1st day of June, 1928, in anticipation of said conveyance the plaintiff and Hans Lee entered into an agreement whereby plaintiff agreed to convey to said Hans Lee, in consideration of the payment on or before April 15, 1929, of the sum of $1,350, interest, and taxes, promptly when due. In said agreement time was made the essence of the contract, and a provision was incorporated therein that in case of defendant's failure to make the payments prompt ly when due that he should forfeit all rights in and to said property. Simultaneously with the execution of said agreement, a deed was executed to the defendant Hans Lee by the plaintiff and placed in escrow to be delivered upon full compliance with the terms of the contract.

Hans Lee failed to pay the 1928 taxes when due, amounting to about $30, and on January 15, 1929, failed to pay the quarterly interest due, amounting to $33.75. On February 12, 1929, plaintiff caused to be served upon the defendants a notice declaring their rights in and to said property forfeited. On the 15th of April, 1929, the date when the $1,350 was by the terms of the contract made payable, Hans Lee tendered to the plaintiff the sum of $1,350 plus interest to that date, together with the taxes accrued and penalties, with interest thereon, and demanded of said plaintiff a deed to the premises in question. The defendant Hans Lee took possession of said property pursuant to the contract with the McLaurines, and remaining continuously in possession thereof, the plaintiff, on July 11, 1929, instituted this suit, making the wife of Hans Lee a party defendant. Besides answering the complaint, the defendants filed a cross-complaint and prayed for a specific performance of the contract.

The trial court found the facts as above stated, and also found:

"The Court further finds that the failure of said Hans Lee to pay said taxes promptly when due and said installment of $33.75 interest when due on January 15, 1929, was due to inadvertence and carelessness on his part, and while he was careless and neglectful in regard thereto, such carelessness and neglect were not wilful."

As a conclusion of law the court found that said Hans Lee should be in equity excused from said default and relieved from such attempted forfeiture, and all proceedings connected therewith.

In consequence of the findings and conclusions of law made by the court and the payment into court by the defendants to the credit of the plaintiff of the total amount found to be due to the plaintiff, a decree was entered in favor of the defendants as prayed.

The main contention of the plaintiff is that the court was not asked to declare a forfeiture, for the reason that that was a matter of agreement between the parties and had been declared and fully effected in accordance with the terms of their agreement before the institution of this suit to quiet plaintiff's title.

In support of the contention plaintiff relies upon the Illinois authorities, and particularly upon the case of Summers v. Hedenberg, 198 Ill.App. 460. The Supreme Court of Illinois, in affirming the judgment of the lower court ( Lang v. Hedenberg, 277 Ill. 368, 115 N.E. 566), observed that a court of equity may uphold a forfeiture declared by a party, but that it will not declare or enforce a forfeiture where it is harsh or inequitable to do so. The Supreme Court takes the position that the decree of the trial court should be based upon the equities of the particular case. Such is the clear holding of that court in Springfield, etc., v. Warrick, 249 Ill. 470, 94 N.E. 933, 935, Ann. Cas. 1912A, 187, where it is said:

"Forfeitures will be enforced by courts in clear cases, but they are not regarded with favor, and their prevention is within the protecting care of equity whenever wrong or injustice will result from their enforcement. *** When equity is applied to for the rescission, cancellation and delivery up of deeds or agreements, the court is not bound to pass upon the question as a matter of absolute right, but it is one within the sound discretion of the court, to be exercised in granting or refusing the relief, according to the court's own notion of what is reasonable and proper under the circumstances of the particular case. 'In all cases of this sort where the interposition of a court of equity is sought, the court will, in granting relief, impose such terms upon the party as it deems the real justice of the case to require, and if the plaintiff refuses to comply with such terms his bill will be dismissed. The maxim is here emphatically applied, he who seeks equity must do equity.' 2 Story's Eq. Jur. § 639; O'Connell v. O'Conor, 191 Ill. 215, 60 N.E. 1063. Where the compensation can be made in money, courts of equity will relieve against forfeitures and compel the party to accept reasonable compensation in money. Gallaher v. Herbert, 117 Ill. 160, 7 N.E. 511; 4 Kent's Com. (14th Ed.) *130. The application of this principle in relieving against penalties or forfeitures in chancery must always depend upon the question whether compensation can or cannot be ascertained. Where there can be a clear estimate of damages or just compensation for breaches of conditions or covenants, courts of equity will relieve against forfeitures or penalties and require such compensation to be made. Harlev v. Sanitary Dist., supra [226 Ill. 213, 80 N.E. 771]; 1 Pomeroy's Eq. Jur. (2d Ed.) § 381; Watson v. White, 152 Ill. 364, 38 N.E. 902. ***"

We do not see that there is any difference in the view there expressed and that expressed by the Supreme Court of the United States in Cheney v. Libby, 134 U.S. 78, 10 S.Ct. 498, 502, 33 L.Ed. 823, where the court said:

"Even where time is made material, by express stipulation, the failure of one of the parties to perform a condition within the particular time limited will not in every case defeat his right to specific performance, if the condition be subsequently performed, without unreasonable delay, and no circumstances have intervened that would render it unjust or inequitable to give such relief. The discretion which a court of equity has to grant or refuse specific performance, and which is always exercised with reference to the circumstances of the particular case before it ( Hennessey v. Woolworth, 128 U.S. 438, 442 [9 S.Ct. 109, 32 L.Ed. 500]), may and of necessity must often be controlled by the conduct of the party who bases his refusal to perform the contract upon the failure of the other party to strictly comply with its conditions." Citing: Seton v. Slade, 7 Ves. 265; Levy v. Lindo, 3 Merivale 81; Hudson v. Bartram, 3 Madd. 440; Lilley v. Fifty Associates, 101 Mass. 432; Potter v. Tuttle, 22 Conn. 512; Ahl v. Johnson, 20 How. 511, 15 L.Ed. 1005.

Other authorities sustaining this rule are: Mound Mines Co. v. Hawthorne et al., 173 F. 882, 97 C. C. A. 394; Shouse v. Doane, 39 Fla. 95, 21 So. 807; Burroughs v. Jones, 79 Miss. 214, 30 So. 605.

Learned counsel for appellant, in support of their contention, direct our attention to what they call the rule in California, quoting:

"A court of equity has no more right than a court of law to dispense with an express stipulation of the parties in regard to time in contracts of this nature." Citing Grey v. Tubbs, 43 Cal. 359.

While the court in that case stated the general rule substantially as quoted, it nevertheless recognized the exception to the rule, for it said: "When it also appears that the purchaser is without excuse for his delay, the Courts will not relieve him from the consequences of his default." Thus the court intimated that if there is excuse for the delay ...