171 S.E. 821 | W. Va. | 1933
Plaintiff McCartney is the vendee of certain real estate sold to him by defendant Campbell in 1928 under a written contract. In this suit, plaintiff seeks to have an accounting, and specific performance of the contract. The circuit court denied him any relief and he appealed.
The contract, made October 6, 1928, provided that the consideration for the land should be $3,500.00, to be paid in installments of not less than $25.00 a month and that at least $500.00 and its interest should be paid annually (pursuant to which seven annual notes of $500.00 were executed by McCartney to Campbell); that when $2,000.00 of the purchase price with accrued interest was paid, a deed should be made to the plaintiff and a vendor's lien reserved to secure the balance; but that if McCartney failed to pay any monthly installment or if he failed to pay $500.00 (with interest) at the end of each year, Campbell should treat the amount *333 theretofore paid as rental and upon written notice the contract should become null and void and McCartney should, without further notice, surrender the real estate to Campbell.
McCartney entered into possession of the real estate and from time to time made a number of payments to Campbell. A written notice, vacating the contract was given him by Campbell on April 28, 1932. An action of unlawful entry and detainer followed, in which on May 9, 1932, the following proceedings were had: Campbell recovered a judgment against McCartney for the possession of the property and immediately had McCartney dispossessed by a writ from the justice; McCartney tendered the justice an appeal bond and asked for an appeal but was refused; then McCartney applied to and obtained an appeal from the circuit court. Upon the filing of the bill in the instant suit, Campbell was enjoined from preventing McCartney retaking possession of the real estate. In the final order that injunction was dissolved and a writ of possession awarded Campbell.
On conflicting evidence, the circuit court found that at the date of the notice plaintiff was behind on his payments, and pursuant to the prayer of defendant's answer, forfeited the contract and awarded defendant a writ of possession. Plaintiff admits the futility of advancing any argument against the finding as to the payments, and does not do so. He raises the legal proposition, however, that instead of forfeiting his contract, etc., on that finding, the court should have ascertained the balance due, should have given him a day in which to pay the balance, and then in case of his default decreed a sale of the property and in that manner foreclosed his equity therein.
In 1892 this Court reasserted the old doctrine — " Equity will not enforce a forfeiture " — saying there seemed to be no change or modification of the rule in modern decisions. SeeCraig v. Hukill,
The decree of the circuit court is accordingly reversed and the cause remanded.
Reversed and remanded.