54 Neb. 782 | Neb. | 1898
On June 6, 1892, the appellant James Thornburg purchased of J. B. Sherman a lot in the city of Beatrice and agreed to pay therefor the sum of $2,000, of which he then paid $200, and contracted to pay of the principal the sum of $15 on the first of each and every succeeding month thereafter and $6 as interest, which made the total of the amounts to be paid monthly $21, this to continue until, the payments should operate an extinguishment of one-half the agreed indebtedness and the interest, when a deed was to be executed and delivered to the purchaser, he to execute and deliver to the grantor a mortgage on the real estate to secure the payment of the balance of the purchase price. The contract of sale and purchase was evidenced by a written instrument in which the terms were fully stated, and it was further provided that the purchaser should pay all taxes assessed against the lot subsequent to the date of the contract of sale, and that insurance should be obtained on any buildings on the premises and continued during the existence of the agreement of purchase, the same to be for the benefit of the vendor, such fact to appear by clause in the policy to that effect. It was also of the agreement that time as to its stipulated payments was of its essence, and any default in them, or other conditions or requirements of performance of acts on the part of the purchaser, should work a forfeiture of all his lights in the premises; and
In the opinion in the case of Harrington v. Birdsall, 38 Neb. 176, wherein a decree of strict foreclosure or of forfeiture of right under a contract of sale of land was affirmed, it was stated: “The remedy by strict foreclosure of land contracts cannot be resorted to in all cases. The remedy being a harsh one, courts of equity will decree, a strict foreclosure only under peculiar and special circumstances. Applications of that character are addressed to the sound legal discretion of the court, and they will be granted in cases where it would be inequitable to refuse them. If the vendee or purchaser has not been guilty of gross laches, nor unreasonably negligent in performing the contract, a strict foreclosure should be refused on the ground that it would be unjust, even though the vendee may have been slightly in default in making of a payment. So, for the same reason, a strict foreclosure will be denied where the premises have greatly increased in value since the sale, or where the amount of unpaid purchase money is much less than the value of the property. On the other hand, if the vendee, without sufficient excuse, fails to make his payments according to the stipulations of his contract, and for an unreasonable time remains in default, the vendor may have a strict foreclosure of the contract for the sale and purchase of the land, unless some principle of equity would be thereby violated.” In the syllabus this appears:
“Courts of equity will decree a strict foreclosure [of land contracts] only under peculiar and special circumstances. Applications of that character are addressed to the sound legal discretion of the court, and they will be granted in cases where it would be inequitable and unjust to refuse them.”
At the time of the trial some of the witnesses placed the value of the property at from $1,200 to $1,500, and one at about $2,000, from which it may be said that it had possibly depreciated in value considerably since the time of the sale, with a conflict of the testimony as to-whether this was a fact or whether it was worth any appreciable sum less than when purchased by appellant. It is true that it was shown that the appellant had not paid the taxes and had not at all times kept the buildings of the property insured, but, all the facts and circumstances considered, and in this connection the reasons shown for the appellant’s failure to strictly comply with the contract, there were not presented sufficient grounds for a decree of forfeiture or strict foreclosure. The decree of the district court is reversed and the cause remanded with leave to the appellee to amend the prayer of the petition to ask an ordinary foreclosure, which would have been and will be proper on the facts as shown. If this is not desired, then a dismissal of the action will be correct.
Judgment accordingly.