24 Colo. 87 | Colo. | 1897
delivered the opinion of the court.
The propositions upon which appellant relies are as follows : It concedes that unless the forfeiture clause has been waived by agreement of the parties to that effect, or lost by the conduct of the defendants amounting to an equitable estoppel, the appellees, upon the giving of due notice, may still enforce it. The claim, however, is made by appellant that when it succeeded to the rights of Frisbie, the appellees virtually agreed that they would not insist upon their right of forfeiture; and there is also the claim made that, in consideration of the expenditure by the appellant of money in the way of development and placing of permanent improvements upon the premises, there was a further understanding at that time that the deferred payments were to be made out of the net profits realized from mining the same. Hence this bond is nothing but an equitable mortgage which must be foreclosed in court, and may not now be summarily enforced by the defendants.
The district court found that neither of these contentions was borne out by the testimony, and in the record there is abundant justification for the finding. It is true that a forfeiture is not favored in law, but is strictly construed against one who asserts it. It will be observed that the appellant contends that the appellees have lost this right, not only by express agreement, but by their conduct. The conduct relied upon is that the defendants stood by and encouraged the plaintiff to expend money and perform labor upon the property, without suggesting or indicating their intention to insist upon this right given by the option, and also in the taking of money for interest after the same became due.
Accepting at or about the time of maturity either interest or principal is not, of itself, a waiver of forfeiture, and we do not find that any interest was taken after it became due, and while plaintiff was in default, even if such payment could have that effect. The contract itself expressly pro
The agreement relied upon is evidenced by a letter written on the 23d of December, 1890, by the defendants to the plaintiff, in which they say they will extend the time of payment provided the plaintiff constructs a ditch from Boulder Greek to Beaver Creek upon the property in question, and if the interest due on January 1, 1891, amounting to $875 is paid. This interest was then about duo, and the payment thereof, in itself, constitutes no consideration for the extension, and the plaintiff itself admits that the ditch was never constructed in accordance with the condition imposed. Certainly, there was no valid agreement here that worked a forfeiture of any right of the defendants under the bond.
Again, on August 9, 1893, the defendants wrote another letter to the plaintiff in which they agreed to extend the time of payment of the balance due under the option, and to indorse as paid the interest then due thereon, if the plaintiff would place on the land, on or before May 1,1894, a hydraulic plant of sufficient capacity thoroughly to wash two hundred and fifty cubic yards of placer gravel per day of ten hours, and, on or before October 1, 1893, pay the sum of $500 and all taxes due on the property which had theretofore been paid by the defendants.
In this connection it is pertinent to say that the defendants had constantly been requesting and urging the plaintiff to make payment, in accordance with the option, both of the principal sums and of the interest due,, and the attention of the plaintiff had also been called to the fact that the taxes which it had agreed to pay were due and delinquent. Of this failure to pay the taxes, of course, the plaintiff knew, as well as the fact that it had not made the payments. The
The large number of authorities cited by appellant are not applicable to the case as made. They are to the point that forfeitures are not favored; that when once waived they may not be resumed; and that reasonable notice must first be given to the party in default before they may be summarily enforced. The district court found there was no waiver of forfeiture, and found that the evidence “ teems with notices,” not in precise form, but so plain that no mistake could he made, that unless the plaintiff paid what was due, the right of forfeiture would be exercised.
The defendants entered upon and took possession of this property within a day, or a few days, after giving formal notice on October 3d that the bond was annulled. Were this the only notice or warning received or given, we might hold it insufficient, but in the letter of August 9th the plaintiff was advised that there would be no extension of the time of payment unless before the first day of the following October all the taxes and the further sum of $500 were paid to the defendants. It will he seen that fifty-two days prior to October 3d (the date of the giving of the formal notice) plaintiff had information that the original bond for a deed in all its terms would remain in force unless it complied with the conditions named. To this letter the plaintiff made no response of any kind; it did not accept the proposition, and in no particular complied, or attempted to comply, with the prescribed conditions. Reasonable notice was thus given to the plaintiff that the defendants would enforce the terms of the original agreement.
In a proper case equity will relieve against a forfeiture
In addition to these defaults, of themselves sufficient to defeat this action, the plaintiff at the trial made no offer to pay the various sums due from it, nor did it pretend that it had the necessary money therefor, or the ability to get it, but, on the contrary, asked the aid of the court to regain possession of the property so that it might work the same in the hope of realizing a profit, or be in a better position to negotiate a sale to some possible, but unknown, purchaser. In the mean time it would require the defendants to keep up the taxes, and to wait the payment of the balance of the purchase price until the improbable realization of plaintiff’s unfounded anticipation from one or the other of the schemes mentioned. Such inequitable conduct of the plaintiff and its defaults do not call for the exercise by a court of equity of its extraordinary power to grant relief from a forfeiture, which might, in a proper case, be given. 1 Pomeroy’s Eq. Jurisp. (2d ed.) §§ 449-452.
The judgment is affirmed.
Affirmed.