¶1I cannot concur with Mr. Justice Cothran, but our differences may be technical, rather than of substance.
¶2I cannot see that there has been any rescission of the contract. The contract provides for a sale, but it also provided that, if the vendee did not make certain payments, then the vendor had the right to annul the contract of sale, and to treat the relationship as that of landlord and tenant. The payments were not made, and the vendor elected under the express language of the contract to assume the relationship of landlord and tenant. B.C. Moore is standing squarely *231 on his contract when he claims rent under that contract and growing out of that contract, under the admitted facts. B. C. Moore has $2,000 of the money of W.H. Moore, and it seems to me the law will apply so much of the $2,000 as is necessary to pay the rent. There is no provision in the contract for a forfeiture. The law is slow to enforce a forfeiture when one is provided for; it certainly will not create a forfeiture where none is even suggested by the terms of the contract, and I concur in holding that there has been no forfeiture, and the plaintiff owes the defendant $2,000, but I think the law applies $1,000 of it to the rent. This is not counterclaim; it is payment. Even if we were treating this case strictly as a special proceeding, I think the defendant should have judgment; but, as we are not, then I think there should also be a judgment for the defendant for the other $1,000.