Bill in Equity, for the specific performance of an oral agreement. The defendant, having bargained with the Gilman heirs for a farm for which he was to pay $4,400 and having but $1,000, made an arrangement with the plaintiff by which he was to buy the timber on the farm for $1,900 and- loan the defendant the further sum of $1,500 which he needed to pay for the farm, the loan to be secured by a mortgage of the farm.
Decided 1917-06-30
Young, J.
¶1
Notwithstanding the defendant cannot be compelled to accept a deed of the farm and reconvey it to the plaintiff in mortgage to secure the payment of his note for $1,500, the evidence excepted to was properly admitted for the purpose of showing how the plaintiff holds the farm. In other words, if this were a writ of entry and the plaintiff introduced the deed conveying the farm to him and rested, it would be competent for the defendant to introduce this evidence for the purpose of showing that the plaintiff held the farm (not including the timber) as security for a loan of $1,500.
¶2
The fact the defendant has repudiated his agreement does not give him any greater rights than he would have had if he were trying to enforce it, consequently the plaintiff is entitled to a decree in his favor. Whether it should take the form of a strict foreclosure or of a sale depends on which the court finds would be equitable. If the court finds there should be a strict foreclosure, it will fix a reasonable time within which the defendant must pay the plaintiff what is due him. If, however, it finds that there should be a sale of the property, it will appoint a commissioner to sell the farm and distribute the proceeds. Whichever form the decree takes, it should fix the exact amount due the plaintiff.
