Brixen v. Jorgensen, 78 P. 674

Brixen v. Jorgensen

78 P. 674 | Utah | 1904

BASKIN, C. J.

This is an action of ejectment to recover possession of the tract of land described in the complaint. The ease was tried without a jury. The findings of fact and conclusions of law in the court below fully appear from the following extract from the opinion of the trial judge, which is set out in the record, to-wit: “From the evidence submitted at the trial, I find that neither the plaintiff nor the defendants have set out the terms of the contract of sale and purchase in the complaint or answer. The evidence shows that the contract was in writing, but that it has been lost and cannot be found. By its terms the plaintiff agreed to sell to the defendants, and the defendants to purchase from the plaintiff, the land described in the complaint, with four shares of first-class water right, to be used in irrigating the lands until about the 1st day of July of each year, and two shares for the balance of the year, *296ending December 31st, for the sum and purchase price of $2,500, payable as follows: Cash, $250; March 1,1902? the further sum of $750; and March 1,1905, the further and final sum of $1,500 — with interest on the deferred payments at the rate of six per cent per annum. At the execution and delivery of the contract, the defendants paid plaintiff $250, and subsequently entered into possession of the premises, and have ever since been' and are now in such possession. Also that between March and June, 1902, defendants at various times made partial payments aggregating $250, and also on July 9 or 10, 1902, paid $200 more, making a total payment of $450 upon the installment of purchase money to be paid March 1, 1902, and leaving a balance of $300 due3 and unpaid upon that installment; and that no other payments have been made by the defendants to the plaintiff. It is not stipulated in the contract that time was of its essence, nor did the contract contain a provision for forfeiture upon failure to pay any part of the purchase money. The evidence does not show that there was a rescission or cancellation or an abandonment or repudiation of the contract of purchase; and, time not being of the essence of the contract, it would seem that the action of ejectment, as in this case, is not the proper remedy; that the plaintiff has a vendor’s lien upon the premises to secure the payment of the purchase money, and her action is one to foreclose such lien. ’ ’ There are no exceptions to the findings of facts. A judgment dismissing the action was made and entered. The appeal is from that judgment.

The law applicable to the facts found is aptly stated in 7 Ency. Pl. & Pr. 319, 320, as follows: “Ejectment may be maintained by a vendor to recover possession of real estate from a purchaser who has gone into possession, with the permission of the vendor, under a contract of purchase, with the terms of which he fails or refuses to comply; the vendor being then at liberty to treat the contract as rescinded, provided the contract be first legally rescinded by the vendor, by repaying the *297purchase money already paid, with legal interest thereon, less a fair rental for the premises, and delivering np the notes or bonds given for the balance of the purchase money, or offering to do so. In other words, the vend- or must place the vendee in statu quo. This at least is the general rule. ’ ’ See cases therein cited; also Statley v. Murphy, 47 Ill. 241; Bohall v. Diller, 41 Cal. 532; Frink v. Thomas, 20 Or. 265, 25 Pac. 717, 12 L. R. A. 239.

We are of the opinion that, under the facts found, ejectment cannot be maintained. As to the proper remedy, we express no opinion.

The judgment is affirmed, with costs.

BARTCH and McCARTY, JJ., concur.