20 Or. 265 | Or. | 1891
— The grounds upon which it is sought to cancel the contract-in this case are (1) the failure of the defendant to pay the purchase price at the time provided in the contract, and (2) the conduct of defendant in attempting to secure a title from the United States for the 160 acres of land in his own name and in fraud of the rights of plaintiff. The first ground proceeds upon the theory that time is of the essence of the contract, and that when defendant failed or neglected to make the payments as he agreed to do, plaintiff was entitled to rescind the contract. Time is of course an indispensable ingredient of every contract; but it is not ordinarily of the essence of a contract for the sale of real estate unless made so by the express agreement of the parties, or by the nature of the contract itself, or of the circumstances under which it was made. When the vendor by his contract to convey has not affirmatively provided that time shall be of the essence of the contract, a court of equity will ordinarily infer that interest on the deferred payments would be a
There is yet another reason why plaintiff cannot have this contract rescinded. It appears from the complaint that soon after making the contract, defendant paid three hundred and forty dollars of the purchase price. Before plaintiff can abandon the contract and treat it as at an end, he must refund or offer to refund the money paid in part performance of it with legal accrued interest. It is a general rule, that in order' to disaffirm a contract and entitle a party to the rights resulting therefrom, the rescinding party must put the other in statu quo. He must account to the other for any money paid in part performance of the contract. (Knott v. Stephens, 5 Or. 235; Johnson v. Jackson, 27 Miss. 498, 61 Am. Dec. 522; 2 Warville on Vendors, 881; Thomas v. Beaton, 25 Tex. Sup. 318.) Plaintiff does not offer to account for the money paid him by defendant in part performance of this contract, but seeks not only to rescind the contract and retain this money, but to charge defendant with the rents and profits of the land during the time he has been in possession thereof, in addition. It would certainly be unjust to permit plaintiff, after having received a part of the purchase money, to put an end to the contract upon the failure of defendant to pay the remainder without offering to account to him for the money already paid. He who seeks the aid of a court of equity must himself do equity. If plaintiff had tendered a deed such as the contract required, he should in addition have returned the notes given by defendant for the purchase money and the amount paid him by defendant, with legal interest, or at least have offered to return them before he could be permitted to rescind. This seems to be the universal rule. The party against whom the rescission is sought must be placed in
What has already been said is sufficient to show that plaintiff does not allege facts sufficient to entitle him to maintain a suit to rescind the contract of sale to the defendant, but it is insisted that under the allegations of the complaint the defendant should be enjoined from selling the 160 acres for which he holds a certificate for a patent from the United States.
The controversy between plaintiff and defendant concerning the legal title to this land is still pending before the land department of the United States, and therefore this court can not now undertake to inquire into the question as to who has the better right to this land under the provisions of the land laws of the government; the land department having acquired jurisdiction, it must first be allowed to proceed to final determination of the case. (Moore v. Field, 1 Or. 318.) But defendant having entered into the possession of this land under a contract of purchase from plaintiff, will not be permitted to obtain an outstanding title and assert it against the plaintiff. It was expressly understood at the time the contract for the sale of this land was made that the title was unsettled, and that plaintiff would take such steps as might be necessary in order to perfect the same so as to comply with his agreement with defendant. With this understanding defendant was allowed to go into possession of the land, and, having done so, neither equity nor good conscience will permit him, by taking advantage of such possession, to obtain the title from the general government in his own name for his own use and benefit. So that if it should finally be decided by the land department that the
At the time of the contract for the - sale of this land by plaintiff to defendant, plaintiff was in the possession thereof under a contract of purchase from the 0. & C. R. R. Co., and, acting in good faith, had made valuable and permanent improvements thereon to the amount and value, as alleged in the complaint, of the sum of $1,300. Relying on defendant’s agreement to purchase the same, he surrendered the possession to him, and now he, having so obtained the possession, seeks, contrary to good faith and fair dealing, to obtain the title in his own name, and thereby to overreach his vendor, who was using every endeavor to secure the title for the use and benefit of defendant in fulfillment of his own contract to convey. This a court of equity will not permit him to do, but whatever title he may obtain will inure to the benefit of plaintiff. But while such is the law applicable to the facts of this case, plaintiff has failed to allege in his complaint, as we have already shown, sufficient- to entitle him to a decree for a specific performance of his contract with