Steel v. Long

Given, J.

*44

1

*43 I. We first inquire as to plaintiff’s claim of ownership or interest in the land. His rights, *44 if he has any, rest upon the admitted written ‘contract with Sexton, under which the plaintiff took and held possession, of the land, and made certain payments thereon. There is .a dispute as to the amount of the payments, and whether they covered the payment due March 1,1893; 'but this is immaterial, as it does appear that plaintiff failed to make later payments of purchase money when due, and pay taxes •before delinquent. There is also a dispute as to whether plaintiff withheld payment because of Mr. Long’s claim to the land and to possession thereof. This, too, is immaterial to the question now being considered, which is whether this written contract, by its terms, became immediately forfeited by plaintiff’s failure t0' pay, or whether the forfeiture rests upon the election of Mr. Sexton to so' treat the contract because of such failure. Appellants contend that, because of the failure' to pay at the time provided in the contract, plaintiff forfeited all rights under it, and that thereby he became a tenant at will, >and has no right,' title, or interest in the land, and, therefore, no right to maintain this action. Appellee contends that by the terms of the contract the option is given to Mr. Sexton ‘alone whether to treat it as forfeited or hot, and that he has not so treated it; therefore the contract is in full force and effect.

We have examined the many cases, cited by counsel, and reach the conclusion that there is no dispute between them as to these propositions; that parties contracting for the sale and purchase of real estate on payments may provide that a failure to make any of the payments at the time agreed shall of itself work a forfeiture of the contract (Barrett v. Dean, 21 Iowa, 425 ); that parties making such contract may make a forfeiture thereof for failure to pay at the time agreed optional with the payee. The contention is as to which of these classes this contract belongs. The first is an unusual *45 •contract, .and it is said in Barrett v. Dean, supra: “But to give a contract such, a construction, it should be plain and clear beyond question from the terms, used that such was the. intention of the parties.”- Taking parts of this contract as quoted -above alone, a forfeiture would clearly follow from the mere fact of failure to pay at the time agreed, but, taking -the whole instrument together, we think it is clear that the right is reserved to Mr. Sexton alone to say whether or not a forfeiture will follow such failure. The provision that the waiver of a forfeiture shall be in writing recognizes the right to waive it. The concludin'g provision that Sexton waiving such forfeiture may at any time thereafter take proper legal proceedings to enforce the contract seems to us to- clearly show that the right to waive the forfeiture was reserved to Sexton. When defendants asserted claim to this land, the plaintiff declined to make further payments until their rights were determined, and brought this action for that purpose. Mr. Sexton was informed, by letters written to him by his agent, of the defendants’ claims, and of the plaintiff’s refusal to pay because thereof. To- this Sexton made no reply either claiming or waiving forfeiture, and, while it is true that his mere silence might not be construed as a waiver, it warrants the inference that, notwithsitandin'g the plaintiff’s failure, he stands upon the contract. The contract, as we view it, being one which Mr. Sexton may treat as forfeited -or not, and which he has thus far treated as in force, it is a binding, enforceable contract between the parties to it. It does not appear that Mr. Sexton had done anything to prevent him from insisting upon the enforcement of the contract, and, ias the option is reserved to him alone, we think the defendants have no right to insist upon a forfeiture. If nothing further appeared', we would say that the contract is an existing and enforceable contract, and that the plaintiff has such rights and interest *46 in the land under it as entitles Mm to maintain this action.

II. We now inquire as to the title of the defendant H. E. Long, which is derived through Mrs. Long from the sheriff’s sale. The judgment upon which the sale was made, being more than ten years old, was mot a lien on Torpey’s land until made so. by levy, which was on April 21, 1892. Torpey previously held tMs land under a contract with Sexton, which they had both treated as at an end long prior to the levy. The plaintiff occupied the land as tenant under Sexton for a time prior to October 6, 1891, after which he held it under said written contract. The evidence leaves no doubt but that at the time of the levy, April 21, 1892, Torpey was not in possession of the land, and neither had nor was making any claim thereto. It is clear, therefore, we think, that Long took nothing by his purchase at the sheriff’s .sale. It is true that in 1882 William Torpey, who had no record 'title, made a quit-claim deed to this land to 'his father, who thereafter quit-claimed to plaintiff, who. was then 'in possession under his contract with Sexton. Thereafter plaintiff, for the purpose of removing that cloud from Sexton’s title, quit-claimed to him. Thus explained, there is nothing ini this transaction at variance with the conclusion we have reached that Torpey had no interest in the land at the 'time of the levy and sale. Appellants, insist that, as the contract provides that forfeiture shall take place without notice unless Sexton shall, in writing, expressly waive such forfeiture, and that, ais Sexton has not so waived it, the contract stands forfeited. It is a sufficient answer to this to say that even mow Mr. Sexton has. the right to expressly waive a forfeiture in writing, and to have a performance of the contract, notwithstanding the decree in favor of Mrs. Long, as in that case plaintiff might waive his right to defend because of that decree.

*47

2 III. Defendants insisted that'by the decree quieting 'title in Mrs. Long she became seized of any interest that Sexton then had in- the land. If this be true as between Mrs. Long, her grantee, and Sexton, it is certainly not true as to this plaintiff, who-, though in possession under said written contract, was not made a party to that action. As we view the facts* there was no foundation whatever for that decree, as Toirpey had no interest in the land ait- the time of the levy and sale. The plaintiff, not being a party to that action, is not concluded thereby, and may therefore now question defendants’ title under the sale and decree. As we view the case, the equities are manifestly with the plaintiff, and most of the authorities cited are inapplicable to the questions presented. Our coniclusions that the plaintiff has such an interest in the land as -entitles him to maintain this action, and that neither the defendant Long nor the defendant Foster, his mortgagee, has any right, title, or interest therein, are so manifestly correct that we -do not cite ¡any authorities in ¡support thereof. The judgment of the district court is affirmed.