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55 Or. 403

Davis v. Wilson

Oregon Supreme Court

Decided February 8, 1910

Oregon Supreme Court · decided 1910-02-08

<p>Vendor and Purchaser—Contract—Nature and Form—Sale or Option.</p> <p>1. Where a written contract bound the owner of land to sell it to plaintiff for $1,500, and to execute a deed on payment on or before April 12, 1907, but that if plaintiff within that time elected not to purchase, the contract should be null and void, it was not a mere option, but a contract of sale.</p> <p>Vendor and Purchaser — Sale — Purchaser's Default — Tender — Demand of Payment.</p> <p>2. Where time was not of the essence of a contract for the sale of land, the vendor could not put the vendee in default, so as to escape specific performance on tender of the balance due with interest, without tendering a deed and demanding payment.</p> <p>Vendor and Purchaser—Default—Enforcement of Forfeiture.</p> <p>3. Intent to forfeit money paid by vendee on contract for the sale of land must clearly appear before the court will permit the vendor to retain both the money and the land because of the purchaser’s default in making payments within the time required.</p> <p>Vendor and Purchaser—Rights of Vendor—Title—Security for Deferred Payments.</p> <p>4. Under an executory contract for the sale of land, the vendor, in the absence of language in the contract indicating some other intent, is the holder of the legal title as security for deferred payments.</p> <p>Vendor and Purchaser—Forfeitures—Default in Payments.</p> <p>5. Where no forfeiture is declared by the terms of a contract for the sale of land, equity will relieve the vendee against a mere failure to pay the purchase price on the day named.</p>

Relies on Frink v. Thomas · Burkhart v. Howard · Coles v. Meskimen

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1910-02-08

How this case has been cited

Cited by 7 later decisions — most recently March 1935

7 state decisions

40191019201930decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Mr. Justice McBride

¶1delivered the opinion of the court.

¶2The complaint is indefinite in many particulars where definiteness is certainly desirable, and a motion to make more definite and certain would have been very opportune. But we think th'at it states a cause of suit sufficiently to be good as against a general demurrer.

¶31. As shown by the complaint, time was not of the essence of the contract, which seems to have been not a mere option, but a contract of sale, upon which the plaintiff had paid $325.

¶42. Under such circumstances, before defendant could put plaintiff in default so as to escape specific performance upon tender of the balance due, with interest, he should have tendered a deed and demanded payment. Frink v. Thomas, 20 Or. 269 (25 Pac. 717: 12 L. R. A. 239.)

¶53. The law is adverse to forfeitures, and the intent to forfeit money, paid upon a contract of sale, must clearly appear before the court will permit the vendor to retain both the money paid and the land which is the subject-matter of the contract. See Frink v. Thomas, 20 Or. 269 (25 Pac. 717: 12 L. R. A. 239), and cases there cited.

¶64. Under an executory contract for the sale of real estate the vendor, in the absence of language in the bond or contract indicating some other intent, is the holder of the legal title as security for the’ deferred payments. Coles v. Meskimen, 48 Or. 57 (85 Pac. 67) ; Burkhart v. Howard, 14 Or. 39 (12 Pac. 79.)

¶75. Where no forfeiture is declared by the terms of the contract, or by its necessary implication, courts of equity will interfere to relieve a party against mere failure to *408pay the purchase money upon the exact day. Lennon v. Napper, 2 Scholes & Lefroy, 682. In the case last cited Lord Chancellor Reesdale, speaking of the action of courts of equity, in contracts of this character, says: “They dispense with that which would make compliance with what the law requires oppressive; and, in various cases of such contracts, they are in the constant habit of relieving the man who has acted fairly, though negligently. Thus in the case of an estate sold by auction, there is a condition to forfeit the deposit, if the purchase be not completed within a certain time, yet the court is in the constant habit of relieving against the lapse of time.” Smith, the co-defendant, is in no better situation than Wilson, as it appears from the complaint that he entered into the contract with Wilson with full notice of plaintiff’s equities.

¶8The decree of the corcuit court is affirmed.

¶9Affirmed.

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