Walsh v. Coghlan

• Decision Date: 29 May 1920
• Citation: 33 Idaho 115,190 P. 252
• Parties: JOHN WALSH and HELEN WALSH, His Wife, Respondents, v. HARLAN W. COGHLAN, ANNETTA R. COGHLAN and BELLE COGHLAN, Appellants
• Court: Idaho Supreme Court

190 P. 252

33 Idaho 115

JOHN WALSH and HELEN WALSH, His Wife, Respondents, v. HARLAN W. COGHLAN, ANNETTA R. COGHLAN and BELLE COGHLAN, Appellants

Supreme Court of Idaho

May 29, 1920

VENDOR AND VENDEE-SUIT TO FORECLOSE VENDEE'S INTEREST-ATTORNEY'S FEE.

1. A vendor who retains title to real property as security for the payment of the purchase price which, according to the contract of sale, was to be paid in instalments, whereupon he was to convey the property to the vendee and furnish an abstract showing clear title, is not in position, when all unpaid instalments are due, to demand a forfeiture of the vendee's interest, or to maintain an action for the purchase price, without tendering the deed and abstract.

2. The vendor may, under the circumstances above stated, without tendering the deed and abstract, maintain a suit to foreclose the vendee's interest and for sale of the property, but is not entitled to have an attorney's fee, payable according to the terms of the notes given for the purchase price in case of suit or action to collect the same, included in the sum for which the property is to be sold.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.

Suit by vendors of real property for foreclosure of vendees' interest therein and for sale thereof. Decree for plaintiffs. Reversed.

Judgment reversed, with instructions. Costs awarded to appellants.

P. E Cavaney and John Jackson, for Appellants.

In a contract for the sale of land where the vendor retains title said vendor cannot bring an action to foreclose a vendor's lien. The vendor's remedy in such a case is upon the contract, either to enforce specific performance or in an action at law. (Brush v. Kingsley, 14 Ohio 20; McKinnon v. Johnson, 54 Fla. 538, 45 So. 451; Avery v. Clark, 87 Cal. 629, 22 Am. St. 272, 25 P 919; Kent v. Williams, 114 Cal. 537, 46 P. 462; Longmaid v. Coulter, 123 Cal. 208, 55 P. 791; Moses v. Johnson, 88 Ala. 517, 16 Am. St. 58, 7 So. 146; Roby v. Bismark Nat. Bank, 4 N.D. 156, 50 Am. St. 633, 59 N.W. 719; Pomeroy, Eq. Jur., 3d ed., sec. 1260; Jones on Liens, 3d ed., sec. 1107; 29 Am. & Eng. Ency. Law, 733.)

If no tender was made, the amended complaint should have alleged a willingness on the part of the vendors to execute the deed to said property, and the deed should have been brought into court upon the trial. (Goodwine v. Morey, 111 Ind. 68, 12 N.E. 82; Melton v. Coffelt, 59 Ind. 310; Boone v. Templeman, 158 Cal. 290, 139 Am. St. 126, 110 P. 947.)

The vendor must allege and prove that he has fully performed the covenants of his contract, or tendered performance. (Burnham v. Roberts, 70 Ill. 19; Harker v. Cochrane, 36 Iowa 390; Sanford v. Cloud, 17 Fla. 532; Johnson v. Wygant, 11 Wend. (N. Y.) 48.)

J. F. Colvin and J. C. Johnston, for Respondents.

"Where the vendor of land takes notes for the purchase money and executes a bond for title, on default of the vendee, the vendor may sue at law for the debt, or obtain possession by ejectment, or foreclose the equity and sell the land for the debt." (Smith v. Robinson, 13 Ark. 533; 48 Cent. Dig. 1081.)

"A court of equity will declare a forfeiture against the vendee where there has been a stipulation for a forfeiture in the contract or where time is made the essence of the contract." (Castleberry v. Hay, 8 Idaho 670, 70 P. 1055; Rischar v. Shields, 26 Idaho 616, 145 P. 294.)

MORGAN, C. J., BUDGE, J. Rice, J., concurs.

OPINION

MORGAN, C. J.

--Appellants, Harlan W. and Annetta R. Coghlan, and respondents, on July 16, 1909, executed a written contract whereby the latter agreed to sell to the former a lot in Boise City for $ 2,000, $ 300 of which was paid and the balance was to be paid in quarterly installments, evidenced by twenty-two promissory notes for $ 75 each and one for $ 50, bearing interest at the rate of 8% per annum. One of the conditions of the contract was that if the purchasers should make all payments according to its terms, respondents would execute and deliver to them a warranty deed conveying the lot and furnish them an abstract showing the title to be clear, except as to a sewer bond assessed against it. The purchasers agreed to pay all taxes or assessments which were or might become due on the premises after January 1, 1910, and the contract contained the following provision:

"In the event of a failure to comply with the terms hereof by the said parties of the second part (the purchasers), the said parties of the first part (respondents) shall be released from all obligations in law or in equity to convey said property, and the said parties of the second part shall forfeit all rights thereto, and all payments made on said property, which shall be retained by the parties of the first part as damages for the detention of said property and occupancy of the same by the said parties of the second part, and after the failure of the said parties of the second part to comply with the terms of this agreement for a period of thirty days, then the parties of the second part shall become the renters of the parties of the first part and shall be subject to dispossession under the laws relating to landlord and tenant under the statute of the State of Idaho."

Appellants went into possession of the premises and made part of the payments, but defaulted in others. This action was commenced to foreclose their interest and to sell the property, and resulted in a decree for plaintiffs from which this appeal is prosecuted.

After finding that the contract in question was entered into as above stated, the trial judge found "that the said contract of purchase provided for forfeiture of the rights of the defendants in the contract of purchase if they failed to keep the covenants and agreements in the said contract contained and in said case of failure to keep the covenants and agreements provided for in the contract the plaintiffs should be released from all obligations in law or equity to convey the said property to the defendants. . . .

"That the said defendants have failed and refused to keep and perform the covenants and agreements in the said contract contained which were by them to be done and performed. . . .

"That under the law and facts as proven in the case before the court the defendants have forfeited all right, title and interest in and to the property set forth and described in the complaint and contract of purchase, and all interest, claim or demand in or to the property set forth and described in the plaintiffs' complaint."

The court found the amount due from appellants to respondents in principal, interest and attorney's fees provided for in the notes, together with costs, and an amount paid by the latter in satisfaction of taxes and assessments levied against the property for the years 1913, 1914 and 1915, and entered a decree that the premises be sold by the sheriff, after public notice according to law relative to the sale of real estate under execution, and that he, after the expiration of the time allowed for redemption, execute a deed to the purchaser; that out of the proceeds of the sale he pay respondents the principal and interest due on the purchase price of the lot, also the sums found to have been paid by them as taxes and assessments thereon, together with the attorney's fee mentioned in the findings. It was further decreed that appellants be barred and foreclosed of and from all claims to or interest in the premises after the expiration of the period of redemption, as provided by law, reference being had to the time allowed for redemption of real property from execution or mortgage foreclosure sale.

The record discloses that all the unpaid installments of purchase price were due at the time the action was commenced. Therefore, in order to be in position to demand a forfeiture of appellants' interest, or to waive it and recover judgment for the purchase price, it was necessary for respondents to allege and prove they tendered a deed conveying the property to the purchasers, together with an abstract showing title as mentioned in the contract. (Boone v. Templeman, 158 Cal. 290, 139 Am. St. 126, 110 P. 947; 39 Cyc. 1907; Roy v. Vaughan, 100 Wash. 345, 170 P. 1019.) There is neither allegation nor proof that such a tender was made, and the findings of fact above quoted, if such they may be called, are without support in the record.

While it was not necessary that respondents resort to foreclosure and sale in order to terminate appellants' interest in the property, that remedy was available (Security Savings & Trust Co. v. Mackenzie, 33 Ore. 209, 52 P. 1046; Longmaid v. Coulter, 123 Cal. 208, 55 P. 791; Kent v. Williams, 114 Cal. 537, 46 P. 462; Taylor v. Interstate Inv. Co., 75 Wash. 490, 135 P. 240; Baldwin v. McDonald, 24 Wyo. 108, 156 P. 27; Denton v. Scully, 26 Minn. 325, 4 N.W. 41), and they could and did choose it. The findings are inconsistent with the relief sought and do not support the decree.

The inclusion of an attorney's fee in the amount to be raised by sale of the property was erroneous. According to the terms of the notes an attorney's fee was to be paid by the makers in case of suit or action to collect the amount therein mentioned, or a portion of it. As above stated, respondents have not put themselves in position to sue on the notes, or for a personal judgment for the purchase price. Recovery in this case is limited to the foreclosure of appellants' interest in and sale of the property, and a money judgment cannot be had.

It is appellants' right that, after the costs and expenses of sale and the amounts due according to the terms of the contract are paid, any balance remaining from the proceeds of the sheriff's sale be paid to them. The sum for which the sale is made...