Keller v. Lewis

Equity will not Enforce a Penalty.—It is a universal rule in equity never to enforce either a penalty or forfeiture. Vendor’s Equitable Bights.—In the view of a Court of Equity, in the case of an agreement to sell land, the title being retained by the vendor as security for the balance of the purchase-money, if the vendor obtains his money and interest, he gets all he expected when he entered into the contract. Vendor’s Bemedy in Equity.—The remedy of the vendor in equity for the persistent default of the vendee is to institute proceedings to foreclose the right of the vendee to purchase, the decree usually giving the latter a definite time within which to perform.

Appeal from the District Court of the Seventeenth Judicial District, County of Los Angeles. The complaint alleges that on March 25th, 1872, the plaintiff being seized in fee and possessed of the Rancho Topango Malibu, agreed, in writing, to sell the same to the defendant Carrie for the sum of thirty-five thousand dollars, of which she agreed to pay one-third upon delivery of the agreement, and the balance on or before the 26th day of June, 1872, with interest on the deferred payment at the rate of ten per cent, per annum; that the said defendant paid eleven thousand six hundred and sixty-six dollars and sixty cents, in accordance with the agreement, and thereafter failed and refused to pay any portion of the balance; that the defendant Carrie S. Lewis, with her sons, moved upon and took possession of said Rancho, and resided there for about the space of sixty days; that she then abandoned said lands and returned to the City of Cleveland, State of Ohio ; that she wholly quit and abandoned said lands, and also said contract; that said contract still remains in her hands, and that the record thereof, unsatisfied and uncanceled, remains in the Recorder’s Office, and operates as a cloud upon plaintiff’s title, and that he is unable to sell the said lands by reason of said cloud, to his great damage. The complaint sets out the contract in full, including the following clause: “ In the event of a failure to comply with the terms hereof by the said party of the second part, the said party of the first part shall be released from all obligations in law or equity to convey said property, and said party of the second part shall forfeit all right thereto, and the said party of the first part on receiving said payment, at the time and in the manner above mentioned, agrees to execute and deliver to the said party of the second part, or to her assigns, a good and sufficient deed, in form to be a bargain and sale deed, and to give her the United States patent therefor when issued, and it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators, and assigns of the respective parties.” The prayer of the complaint was that the plaintiff’s title be quieted as against the defendants, that' they be forever barred from asserting any claim under the said agreement, and that the money already paid by the defendants be declared forfeited. The defendants answered, alleging that they were husband and wife; that they were residents of Ohio; that the husband had sent the wife to California to purchase a farm for the children, giving her specific instructions not to purchase any land of which the title was in any way in dispute; that the wife had made the purchase from the plaintiff upon his representation that the title was perfect, and the possession should be undisturbed ; that soon after entering into possession, she was annoyed by various parties claiming adversely, and the plaintiff had never been able to give a perfect title, nor to secure the defendants in the quiet possession of the property. They' asked that the contract be rescinded, and that the plaintiff he required to return the eleven thousand six hundred and sixty-six dollars and sixty cents, with interest. At the trial it appeared that the rancho, which contained thirteen thousand three hundred and thirty-five and seventy one-hundredths acres, was a tract originally granted by José Joaquin Arrellaga, Governor of California, to José Bartolomé Tapia, in 1804; that at the time of the sale to defendants, the heirs of Tapia were in possession, claiming two-thirds of it, and a suit was subsequently brought by the plaintiff to eject them, which action was pending before the Supreme Court at the time of the trial. It appeared, also, that the property had advanced in value to about sixty thousand dollars; that the defendants had tried to sell, but could not do so because of the trouble about the title; that the defendant Carrie had occupied the premises only a few months, when she had returned to her husband in Ohio. The Court found that the statements in the complaint were true, and thereupon issued a .decree in accordance with the prayer of the complaint. Soon after the entry of the decree, the appeal in the case of Keller v. Tapia was decided in favor of the plaintiff, thus perfecting his title to the whole rancho. Thereafter the defendants filed a motion stating the fact, and asking that the decree be modified so as to allow them to pay the balance due under the contract with plaintiff, and take the land. The motion was denied. They then moved for a new trial, which was refused, whereupon they appealed.