61 P. 409
Kan.
1900

*47The opinion of the court was delivered by

Smith, J.:

Defendants in error contend that plaintiffs in the trial court were, at most, entitled only to conditional relief under their petition, dependent upon the repayment to the obligee in the bond for a deed of the $290 paid by Yaw to Roberts at the date of the instrument, together with $13.33 taxes paid by the former. This bond for a deed is a contract unilateral in character. The obligors alone were bound by its provisions. (Guthrie v. Anderson, 47 Kan. 383, 28 Pac. 164). When the action was commenced, Yaw, defendant below, had been in default for about fourteen months. At no time had he offered to comply with the terms of the instrument requiring payment as a condition to obtaining a deed to the land. He could not at any time have recovered back the first payment of $290 made by him when the contract was executed. (Ketchum & Sweet against G. B. Evertson, 13 Johns. 359.) Plaintiffs tendered a deed to the land before suit was brought, demanding payment of the amount due, and again in their petition made a like tender. Defendants below have at no time claimed any rights under the contract. On the other hand, persistently repudiating it, they demand back what they have paid.

It is well settled that where, by the terms of a written instrument, time is not made of the essence of the contract, it can nevertheless be made so by a performance or the tender of performance by one party and a demand of the other. (Foster v. Ley, 32 Neb. 404, 15 L. R. A. 737, 49 N. W. 450, and note ; Frink v. Thomas, 12 L. R. A. 239, 25 Pac. 717, and note ; Barnard v. Lee, 97 Mass. 92; Hatch against Cobb, *484 Johns. Ch. 559; Sea v. Morehouse, 79 Ill. 216; King v. Ruckman, 20 N. J. Eq. 316.)

In the case of Kirby v. Harrison et al., 2 Ohio St. 326, 332, there is an able discussion by Justice Thurman of this question, applied to a contract quite like the one under consideration. Kirby made a written contract for the sale of certain real estate to Harrison at the price of $1000. The sum of $100 was paid down, and the residue agreed to be paid in nine annual instalments of $100 each, and when so paid Kirby covenanted to execute to the obligee a warranty deed to the premises. The second instalment coming due, Kirby notified Harrison, some seven months thereafter, of the fact and requested payment, but received no response. Six months later he filed his bill for rescission. The learned justice said :

“Although there is no stipulation of the parties that time shall be of the essence of the contract, nor anything in the nature or circumstances of the agreement to make it so, yet it may be made essential by the proper action of a party who is not in default and is ready to perform, if the other party is in default without justification. Thus, if the vendee, without sufficient excuse, fail to pay at the stipulated time, and the vendor is in no default and is able and ready to perform all that the contract then requires of him, he may notify the vendee to pay within a reasonable time, or he (the vendor) will consider and treat the contract as rescinded. In such case, if payment be not made within a reasonable time, the vendor has a right to treat the contract as abandoned by the vendee. In like manner, and with like consequences, the vendee may notify the vendor, if the latter is in default and the former is not. Remmington v. Kelley, 7 O. R. pt. 2, 97; Higby v. Whittaker, 8 O. R. 201.”

In that case there was a decree entered that the contract be delivered up and canceled. In the case *49at bar there was a prayer for relief in the alternative, first, for a judgment against Yaw for $710, with interest, to be declared a first lien on the real estate, and an order of sale thereof; or, if the court should find that specific performance of said writing ought not to be enforced, then that the court decree that defendants surrender said writing for cancelation, and the cloud on the title of the real estate be removed, and that plaintiffs’ title be quieted. The relief last prayed for was granted by the court, and we think rightly so, in view of the persistent neglect of the obligee in the bond to comply with its terms, particularly after demand and tender of a deed by plaintiffs.

In Benedict v. Lynch, 1 Johns. Ch. 370, 376, Chancellor Kent said:

“The notion that seems too much to prevail, that a party may be utterly regardless of his stipulated payments, and that a court of chancery will, almost at any time, relieve him from the penalty of his gross negligence, is very injurious to good morals, to a lively sense of obligation, to the sanctity of contracts, and to the character of this court. It would be against all my impressions of the principles of equity to help those who show no equitable title to relief.”

The conduct' of the defendants below was such as not to entitle them to any equitable relief, and the decree entered against them in the district court was justified under the facts shown.

The judgment of the court of appeals will be reversed and the judgment of the district court affirmed.