106 P. 795 | Or. | 1910
delivered the opinion of the court.
The 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.
1. 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.
2. 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.)
3. 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.
4. 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.)
5. 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
The decree of the corcuit court is affirmed.
Affirmed.