Sigler v. Wick
45 Iowa 690
Iowa
1877
Check Treatment
Eothrock, J.

i coirTBACT: vendeef'for- . feiture. The question here presented cannot well be determined upon the authority of adjudicated cases, because E rarely occurs that contracts of this character are precisely similar in terms. The contract is unlike that construed in Bradford v. Limpus, 10 Iowa, 35. In that case the contract provided that if the purchaser should fail to pay the first deferred payment the vendor should take possession of the land and repay to the purchaser $1200 of the $1700 which was paid in hand. In effect it provided that in case no further payments should be made the contract was to be rescinded, and the purchaser to forfeit $500 of what he had paid. In this case the contract provides as follows: “It is expressly understood and agreed by all parties hereto, that if the party of the second part fails to make payment at the time stipulated, or fails to pay the taxes when the same are due, the lots above described shall be considered forfeited.” We do not think the expression that it is “agreed by all parties ” adds any force, or in any way changes the meaning of the contract. The meaning would be the same *692if these words were omitted. The provision that the lots shall be considered forfeited-for default in payment, we think, means only that such forfeiture shall be at the option of the plaintiff. This view is strengthened by the subsequent provision that upon such failure of payment the plaintiff shall have the right to enter upon the possession of the lots. We think this possession or some other unequivocal act should appear before the defendant can be absolved from liability upon the contract. The mere payment of taxes, for his own protection, is not taking possession by the vendor.

The general rule is that a stipulation that a contract for the sale of land shall become void upon non-payment is for the benefit of the vendoi*. 1 Smith’s Leading Cases, 88. The cantract in this case is more nearly like that construed in Barrett v. Dean, 21 Iowa, 423, than any to which our attention has been called by counsel. In that case it was held that the provision as to forfeiture was for the benefit of the vendor and not the purchaser. The contract provided that for failure to make payment the agreement should be from “thenceforth utterly void.” In this case the language is that for a like failure the lots shall be considered forfeited. We think the reasoning of the opinion in that case well applies to the contract in the case at bar.

It is urged that there was no binding obligation upon the defendant to pay the purchase money. We think’ that the first clause of the contract contains such obligation. It is there recited that the party of the first part bargained the lots to the party of the second part for the sum of $200. Then follows the designation of terms and amounts of the respective payments. In our opinion the demurrer to the petition should have been overruled.

Beveesed.