21 Minn. 534 | Minn. | 1875
This was an action of ejectment. The facts, as they are found by the court, are that in 1871 the plaintiff orally agreed to sell the premises to the defendant Ellen, and she agreed to purchase them, for the price of $2,700, and that pursuant to that agreement, the plaintiff, on February 23,1872, executed to her his bond, conditioned to convey the premises to her, upon being paid the sum of $2,275, in six months from that date, with interest at the rate of twelve per cent, per annum until paid, according to the condition of her promissory note, payable to his order, and dated on that day. That previous to the execution of the bond, the defendants paid plaintiff $300 on the purchase, and at the date of the bond $300 more, and on July 15, 1873, paid on the note $120. That at the time of making the bargain for the purchase, the defendant went into possession, and made permanent improvements, to the
Of these facts the answer sets up (with others negatived by the finding of the court) the execution of the bond and note, the previous parol agreement to purchase, the payment and improvements, and alleges that the defendants are ready and willing to pay the interest due on the note, and the principal thereof in April, 1874. It does not ask for any affirmative relief. The defendants claim that because of what they term their equities, an action of ejectment will not lie, but that plaintiff must resort to a suit in equity for the enforcement of his rights. This point is decided in McClane v. White, 5 Minn. 178, 190. Where the legal title is in the plaintiff, he may bring ejectment to recover possession, whatever equities the defendant may claim. The do
Tested by this rule, do the facts found constitute such an equity? The defendants’ case, briefly stated, (and without referring to the effect upon it of plaintiff’s notice,) is this : They have a contract from plaintiff for a conveyance of the land, upon their paying a certain price at a designated time, and have been in default, without excuse, more than a year in the payment of the money. Now, while a court of equity would, in a suit for a specific performance, and upon a tender of present performance by them, overlook their past default, it certainly would not grant them leave to continue it in the future ; yet this is, in substance, what the defendants ask. Being in default, they, without seeking a specific performance, or offering to fulfil on their part, ask the court to continue them in possession indefinitely. When such an application is made to a court of equity, it can be granted only upon compliance with the rule that he who seeks equity must do equity. One seeking to be relieved in equity from a forfeiture at law, incurred by his own default, certainly never got such relief, without making good, or offering to make good, the default.
The fact that, at the time of commencing the action, the plaintiff still had the defendants’ note, is no reason why the court, as a court of equity, should retain defendants in possession, especially after plaintiff, at the trial, surrendered it. The order appealed from is affirmed.