56 Neb. 181 | Neb. | 1898
The defendant in error instituted this action in the distinct court of Dawson county to recover of plaintiff in error the possession of a quarter section of land. The petition consisted of the ordinary declaration in an action of ejectment. The answer to the petition was as follows:
“1. That he denies each and every allegation therein contained.
“2. This defendant further shows that on the 2d. day of August, 1897, he entered into an agreement with the plaintiff under the name of O. E. Perkins and E. B\ Perkins, his wife, in which said parties agreed to sell and did sell to this defendant, and this defendant agreed to purchase and did purchase from said parties, the premises described in plaintiff’s petition; and said agreement is hereto attached, marked “Exhibit A,” and hereby made a part hereof.
“3. That the defendant, in good faith, entered into possession of said premises under said contract of purchase, on said day, and has remained in possession ever since.
“4. That the defendant, in good faith and relying on his rights under said contract and the law, has broke and cultivated twenty acres on said tract, of the value of $40.
“5. That this defendant has been at all times, and is now, ready ‘ and willing to pay the amounts due the plaintiff on said contract according to the terms of the same, and to comply with all the conditions thereof, and he hereby tenders in open court, for the use and benefit of the plaintiff, the sum of $367.08 and interest thereon, if any is due, to be applied on said contract.
“Wherefore, the defendant prays that plaintiff’s petition may be dismissed, and for such other and further relief in the premises as in equity this defendant is entitled to, and as the court may deem proper.”
Exhibit A of the foregoing pleading, the contract of purchase, contained first a general, then a specific, state-
For the defendant in error there was filed the following reply:
“1. Admits that the defendant entered into possession of premises described in plaintiff’s petition by virtue of and under the contract set up in and made a part of said defendant’s answer, but alleges the fact to be that said*185 defendant failed and neglected to pay the installment of $300 principal and $67.08 interest due under the terms of said contract on the first day of January, 1898, and that thereafter and on the 12th day of February, 1898, the said defendant still failing and neglecting to pay said installments of principal and interest or either, the plaintiff, in the exercise of the right and privilege reserved and stipulated for in and by said contract, and in pursuance of the provisions therein contained, declared said contract null and void, and on the same day made, executed, and delivered to said defendant a notice and declaration in writing of said forfeiture, a copy of which is hereto attached and marked “Exhibit A” and made a part of this reply.
“2. That defendant has made no offer of payment of said sum of $367.08, or any part thereof, except by the filing of his said answer, nor has he in fact paid said sum or any other sum into court for the use or benefit of plaintiff.
“Wherefore he prays for the relief demanded in his said petition.”
Exhibit A.
“Burlington, Iowa, February 12,1898.
“George H. Whiteman, Lexington, Nebraska—Dear Sir: You are hereby notified that contract for the following described property, to-wit: The southwest quarter of «ection 25 in township 9 north, range 19 west, in Dawson county, Nebraska, has this, day been declared forfeited and cancelled, because of non-compliance of the terms of the agreement. Possession of said premises is hereby demanded. You will take notice of this declaration of forfeiture and demand for possession, and be governed accordingly.”
To the reply a demurrer was interposed which, on hearing, was overruled. The plaintiff in error signified his election to stand on the demurrer and plead no further, and, after motion for a new trial on part of the plaintiff in error was overruled, judgment was rendered for defendant in error.
In Pomeroy, Contracts, page 462, section 390, it is said on this subject, and numerous cases cited in support of the statement: “It is now thoroughly established that the intention of the parties must govern, and if the intention clearly and unequivocally appears from the contract, by means of some express stipulation, that time shall be essential, the time of completion or of performance, or of complying with the terms, will be regarded as essential in equity as much as at law. No particular form of stipulation is necessary; but any clause will have the effect Which clearly and absolutely provides that the contract is to be void if the fulfillment is not within the prescribed time.”
In the decision of the case of Missouri R., F. S. & G. R. Co. v. Brickley, 21 Kan. 276, opinion by Brewer, J., it was stated: “While in agreements for the sale of real estate the time of payment is not ordinarily of the essence of the contract, yet, by express stipulation, the parties may make it so, and, when so made, such stipulation is, like all other stipulations of the contract, to be respected and enforced by all courts, those of equity as well as those of law.”
This court in Morgan v. Bergen, 3 Neb. 209, gave recognition and approval to the principle on which the doctrine just stated is based when it said: “Parties may make time the essence of the contract, so that if there be a default at the day, without any just excuse and without any waiver afterwards, the court will not inter
The tender pleaded in the ansAver, if sufficient in other respects, was not made until subsequent to the forfeiture and suit brought to enforce it, and was ineffectual. (Ralph v. Lomer, supra.)
It is further- contended that the enforcement of the contract in accordance with its terms is contrary to the spirit and intent of what is known as the “Occupying Claimants Act” (Compiled Statutes, ch. 63). It was determined in Vance v. Burlington & M. R. R. Co., 12 Neb. 285, that a vendee of land under such a contract as is herein invoked was not within either the letter or spirit of the act the proAdsions of which are invoked, and we will adhere to that decision.
' It is also urged that the court erred in not granting to the plaintiff in error on his motion in that regard a second trial. It is provided in section 630 of the Code of CdAdl Procedure, in-relation to an action such as the one at bar: “In an action for the recovery of real property, the party against whom judgment is rendered may, at any time during the term at which the judgment is rendered, demand another trial by notice on the journal, and thereupon the judgment shall be vacated, and the action shall stand for trial at the next term.” This does not provide that where a party has interposed, as in the present suit, a demurrer to a pleading, which has been overruled, and has announced that he desires to plead no further, but will stand on his demurrer, and, in due
Affirmed.