141 Iowa 671 | Iowa | 1909
On February 11, 1902, defendant, as
And it is expressly agreed by and between the parties hereto that the time and times of payment of said sums of money, interest and -taxes aforesaid is the essence and important part of the payments or agreements above mentioned to be performed by the party of the second part in consideration of the damage, injury and expense thereby resulting or that may be incurred by or to the party of the first part thereby, this- agreement shall be void and of no effect, and the party of the second part shall have no claim in law or equity against the party of the first part, nor to the above-mentioned real, estate, nor any part thereof, and any claim or interest or right the party of the second part may have had hereunder up to that time by reason hereof, or of any payments or improvements made hereunder, shall on all such default cease and determine and become forfeited, without any declaration of forfeiture, re-entry or any act of the party of the first part. And if the party of the second part, or any other person or persons, shall be in possession of said real estate, or any part thereof, he or they will peacefully remove -therefrom, or in any default thereof he or they may be treated as tenants holding over unlawfully after the expiration of a lease, and may be ousted and removed, as such. But if such sums of money, interest and -taxes are paid as aforesaid, promptly and at the time as aforesaid, the party of the first part will, on receiving said money and interest, execute and deliver at his own cost and expense, a warranty deed of said premises as above agreed, and -abstract of title.
On February 27, 1905, defendant caused ^ the- following notice to be served upon plaintiff and her husband:
*673 Des Moines, Iowa, February 27, 1905. Mrs. Julia M. Nolan and James M. Nolan, her husband: You are hereby notified that the lease agreement made and entered into on the 11th day of February, 1902, on the following described property, to wit: The south 33% feet of lot number eighteen (18) of the official plat of the northwest quarter of the northwest quarter of section four (4), township seventy-eight (78), range twenty-four (2,4), now included in and forming a part of the said city of Des Moines, Iowa, by and between Michael Foley, party of the first part, and Julia M. Nolan, party of the second part, is null and void for default in monthly payments. Michael Foley.
Plaintiff was in actual possession of the property until September of the year 1902, when she moved to Maloy, Iowa, and thereafter she rented it to various parties, until about February of the year 1905, when defendant directed her then tenant, a Mrs. Smith, not to pay her any more rent. Defendant moved into the property and occupied it with Mrs. Smith until about April of the year 1905, when Mrs. Smith left the property, leaving it in the full posses^ sion of the defendant. On the trial defendant conceded that plaintiff had made all payments called for by her lease until September 24, 1904, except, the ones due in March and August of that year. On March 1, 1905, plaintiff caused the following notice to be served upon the defendant :
To Michael Foley: I hereby tender you the sum of fifty dollars ($50) in full of amount due you to this date on contract of sale with Julia M. Nolan for the south thirty-three and three-fourths (33%) feet of lot 18 of the official plat of the southwest, quarter of the southwest quarter section 4-78-24, in and part of the city of Des Moines, Iowa. This tender is made for the purpose of keeping said contract in full force and effect and should you fail to accept the above money on the date of the service of this notice, this tender will be kept good and money held subject to vour order at the office of R. G. Patton, 804 Observatory Building, Des Moines, Iowa.
For appellant it is contended that defendant never legally forfeited the contract of sale, that plaintiff made .k proper tender of all that was due under the contract, and is willing to pay whatever amount the court finds is yet due, and that she is entitled to a specific performance of her contract. On the other hand, it is insisted that the contract - was properly forfeited, that plaintiff has never offered or tendered the amount due on her contract, and that the petition was properly dismissed.
Code, sections 4299, 4300, read as follows:
Sec. 4299. Any contract hereafter made for. the sale of real estate in the State of Iowa, and which provides for a forfeiture, of the vendee’s rights therein upon. the happening of certain, conditions, shall not be forfeited or canceled unless thirty days before a declaration of forfeiture is made, a written notice be served upon the, vendee 1 . . which notice shall be served in the same manner and by the same parties authorized to serve original notices, and shall contain a declaration of an intention to. forfeit said contract, and the' reason therefor.
Sec. 4300. For the period of thirty days after service of said notice the vendee or those claiming under him may discharge any unpaid payments and costs of seiwice of notice of forfeiture or perform any conditions broken, and if said payments are made or conditions broken áre performed within said period of thirty days, the right' to forfeit for such defaults occurring before said notice was served is terminated. ' '
Objections other than those interposed at the time the tender was made were waived. Gilbert v. Mosier, 11 Iowa, 498.
The decree will be reversed and the cause remanded for one in harmony with this opinion. — Reversed and remanded.