Caton, C. J.
The case presented by this record is briefly this: On the 25th October, 1848, Burk entered into a written contract of purchase with Schuyler and others, of the half section of land in question, for $600.00; one hundred of which he paid down, and agreed to pay one hundred with interest on the first day of January, 1850, and one hundred dollars with interest on the first of each succeeding January, until the balance should be paid. The covenant to convey is made upon the express condition that the payments shall be promptly made, and time is in terms declared to be of the essence of the contract; and a subsequent clause of the contract declares that the parties of the first part, in case of failure by Burk to perform any of his covenants, “ shall have the right to declare this contract void.” In pursuance of a verbal understanding between Burk and Miller, existing before this purchase, Burk agreed to sell to Miller one eighty of the half section, with payments and conditions corresponding with those of the contract of purchase above stated; of which payments, thirty dollars were paid down by Miller. Miller took possession of his eighty, and Burk took possession of the balance of the half section. On the second of January, 1850, the day after the second payment of one hundred dollars and interest fell due, Burk paid to the agents of the parties of the first part fifty-six dollars, and the agents at that time, agreed to extend the balance of that payment till the first of January, 1851. No further payment was made by Burk till the 10th of October, 1851, when he paid seventy-five dollars on the contract. This was the last payment he ever made on that contract, and no extension of time was ever stipulated, except that which was stipulated on the second of January, 1850. Several times between the time of the last payment on the 10th of October, 1851, and the 15th of March, 1853, Burk was personally notified by the agents of the party of the first part, that unless he paid up immediately, they would be obliged to declare the contract forfeited, and on the first of February, 1853, the agents wrote to Burk: “ if you do not pay up on or before March 1st, next, we shall declare same forfeited, and the land shall be for sale.”
Miller was nearly as delinquent in his payments to Burk, as Burk was to Schuyler and others.
On the 27th of February, 1853, Burk assigned his interest in the contract to the complainant, Chrisman, who never made any payments on the contract; and on the 16th of March, 1853, the agents of Schuyler sold the land to Miller for $533.26 ; of which he paid down $360, and the balance on the 26th of October, following. In the mean time, Burk continued in the possession, use and occupation of the three eighties which he claimed, and made valuable improvements on the land; and after he heard of the purchase by Miller, he tendered the amount due on the contract to the agents of Schuyler and others, and also to Miller, and demanded a conveyance of the two hundred and forty acres to Chrisman, which was refused. At the time Miller purchased, he represented to the agents of whom he made the purchase, that Burk was unable to complete the payments, and that he had purchased of Burk a part of the land. This is in brief, the substance of the case, as we gather it from a very voluminous record, upon which the court below dismissed the bill; which is now assigned for error.
When once understood, this whole case is reduced to a very small compass.
Two principal questions present themselves in the consideration of this case, upon which the decision must principally depend:
First. Had the contract for the purchase of the land by Burk ceased to exist, so that he no longer had any legal or equitable rights under it, on the 16th of March, 1853, at the time of the purchase by Miller ? And—
Second. Was the conduct or position of Miller such at the time of his purchase, as to make him the trustee of the assignee of Burk, and make Miller’s purchase enure to the benefit of Chrisman ?
It seems to us, that but one answer can be given to the first proposition.
It is conceded on all hands, that parties have a right to make their contracts as stringent as they please, and to make time of the very essence of their contracts; and if one party, without the consent of the other, allows the specified time to pass, no matter from what cause, without performing the condition, the stipulated consequences must follow. Here, by the express contract of the parties, time was made of the essence of the contract. The contract is, that if the payments should not be made at the stipulated time, then the purchaser’s interest under the contract should cease. In all such cases, the mere lapse of time, with non-performance, does not of itself obliterate the contract; so that neither party has any rights, and is subject to no liability under it as if it never had been. After the expiration of the time, and non-performance, the vendors had a right still to treat the contract as subsisting, and sue Burk on his covenants. The clause of forfeiture was put in for their benefit and their security, and did not release the purchaser from his covenants to pay, till the covenantees -chose to avail themselves of that clause. Till then, the rights and liabilities remained the same as if no such clause was in the contract. Mason v. Caldwell, 5 Gilm. R. 196. So long as Schuyler and others reserved the right to sue Burk upon his covenants to pay, so long did the right subsist in Burk to tender the balance due, and demand a deed. After default by Burk, they had the right at any moment to declare the forfeiture; and thus deprive themselves of the right to sue on the covenants; and to deprive Burk of the right to claim a performance by them, nor was it incumbent on them to give notice to Burk of such determination. After his default he was entirely at their mercy. The mere act of offering the land for sale, or entering it in their sale-book, or any other act showing that they considered the contract as terminated, or treated it as terminated, was sufficient to put an end to it, and deprive Burk of the right to claim its performance ; and them of the right to sue him upon his covenants contained in it. If we treat Miller as a stranger, then the mere act of selling to him was of itself a sufficient election by the vendors to seek their remedy by taking advantage of the forfeiture, and released their remedy on the covenants. Indeed such was the undoubted effect of the sale to Miller, no matter what his relations to Burk might be in reference to the land.
We will now consider for a moment what those relations were, and what influence they should exert upon the respective rights of Miller and Burk, or on the assignee of Burk in reference to the title acquired by Miller.
During the subsistence of that contract, both Miller and the assignee of Burk had a joint interest in it, the former to the extent of the eighty acres which he had purchased of Burk, and the latter to the extent of the remainder of the half section. We are inclined to the opinion that while this relation continued, while the contract subsisted in life, and each had an interest in it, neither could deal for the subject-matter of that contract, except for the joint benefit of both, in proportion to their respective interest in that subject-matter.
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Caton, C. J.
The case presented by this record is briefly this: On the 25th October, 1848, Burk entered into a written contract of purchase with Schuyler and others, of the half section of land in question, for $600.00; one hundred of which he paid down, and agreed to pay one hundred with interest on the first day of January, 1850, and one hundred dollars with interest on the first of each succeeding January, until the balance should be paid. The covenant to convey is made upon the express condition that the payments shall be promptly made, and time is in terms declared to be of the essence of the contract; and a subsequent clause of the contract declares that the parties of the first part, in case of failure by Burk to perform any of his covenants, “ shall have the right to declare this contract void.” In pursuance of a verbal understanding between Burk and Miller, existing before this purchase, Burk agreed to sell to Miller one eighty of the half section, with payments and conditions corresponding with those of the contract of purchase above stated; of which payments, thirty dollars were paid down by Miller. Miller took possession of his eighty, and Burk took possession of the balance of the half section. On the second of January, 1850, the day after the second payment of one hundred dollars and interest fell due, Burk paid to the agents of the parties of the first part fifty-six dollars, and the agents at that time, agreed to extend the balance of that payment till the first of January, 1851. No further payment was made by Burk till the 10th of October, 1851, when he paid seventy-five dollars on the contract. This was the last payment he ever made on that contract, and no extension of time was ever stipulated, except that which was stipulated on the second of January, 1850. Several times between the time of the last payment on the 10th of October, 1851, and the 15th of March, 1853, Burk was personally notified by the agents of the party of the first part, that unless he paid up immediately, they would be obliged to declare the contract forfeited, and on the first of February, 1853, the agents wrote to Burk: “ if you do not pay up on or before March 1st, next, we shall declare same forfeited, and the land shall be for sale.”
Miller was nearly as delinquent in his payments to Burk, as Burk was to Schuyler and others.
On the 27th of February, 1853, Burk assigned his interest in the contract to the complainant, Chrisman, who never made any payments on the contract; and on the 16th of March, 1853, the agents of Schuyler sold the land to Miller for $533.26 ; of which he paid down $360, and the balance on the 26th of October, following. In the mean time, Burk continued in the possession, use and occupation of the three eighties which he claimed, and made valuable improvements on the land; and after he heard of the purchase by Miller, he tendered the amount due on the contract to the agents of Schuyler and others, and also to Miller, and demanded a conveyance of the two hundred and forty acres to Chrisman, which was refused. At the time Miller purchased, he represented to the agents of whom he made the purchase, that Burk was unable to complete the payments, and that he had purchased of Burk a part of the land. This is in brief, the substance of the case, as we gather it from a very voluminous record, upon which the court below dismissed the bill; which is now assigned for error.
When once understood, this whole case is reduced to a very small compass.
Two principal questions present themselves in the consideration of this case, upon which the decision must principally depend:
First. Had the contract for the purchase of the land by Burk ceased to exist, so that he no longer had any legal or equitable rights under it, on the 16th of March, 1853, at the time of the purchase by Miller ? And—
Second. Was the conduct or position of Miller such at the time of his purchase, as to make him the trustee of the assignee of Burk, and make Miller’s purchase enure to the benefit of Chrisman ?
It seems to us, that but one answer can be given to the first proposition.
It is conceded on all hands, that parties have a right to make their contracts as stringent as they please, and to make time of the very essence of their contracts; and if one party, without the consent of the other, allows the specified time to pass, no matter from what cause, without performing the condition, the stipulated consequences must follow. Here, by the express contract of the parties, time was made of the essence of the contract. The contract is, that if the payments should not be made at the stipulated time, then the purchaser’s interest under the contract should cease. In all such cases, the mere lapse of time, with non-performance, does not of itself obliterate the contract; so that neither party has any rights, and is subject to no liability under it as if it never had been. After the expiration of the time, and non-performance, the vendors had a right still to treat the contract as subsisting, and sue Burk on his covenants. The clause of forfeiture was put in for their benefit and their security, and did not release the purchaser from his covenants to pay, till the covenantees -chose to avail themselves of that clause. Till then, the rights and liabilities remained the same as if no such clause was in the contract. Mason v. Caldwell, 5 Gilm. R. 196. So long as Schuyler and others reserved the right to sue Burk upon his covenants to pay, so long did the right subsist in Burk to tender the balance due, and demand a deed. After default by Burk, they had the right at any moment to declare the forfeiture; and thus deprive themselves of the right to sue on the covenants; and to deprive Burk of the right to claim a performance by them, nor was it incumbent on them to give notice to Burk of such determination. After his default he was entirely at their mercy. The mere act of offering the land for sale, or entering it in their sale-book, or any other act showing that they considered the contract as terminated, or treated it as terminated, was sufficient to put an end to it, and deprive Burk of the right to claim its performance ; and them of the right to sue him upon his covenants contained in it. If we treat Miller as a stranger, then the mere act of selling to him was of itself a sufficient election by the vendors to seek their remedy by taking advantage of the forfeiture, and released their remedy on the covenants. Indeed such was the undoubted effect of the sale to Miller, no matter what his relations to Burk might be in reference to the land.
We will now consider for a moment what those relations were, and what influence they should exert upon the respective rights of Miller and Burk, or on the assignee of Burk in reference to the title acquired by Miller.
During the subsistence of that contract, both Miller and the assignee of Burk had a joint interest in it, the former to the extent of the eighty acres which he had purchased of Burk, and the latter to the extent of the remainder of the half section. We are inclined to the opinion that while this relation continued, while the contract subsisted in life, and each had an interest in it, neither could deal for the subject-matter of that contract, except for the joint benefit of both, in proportion to their respective interest in that subject-matter.
However this may be, we are of opinion that the agents of the vendors had terminated the contract by taking advantage of the clause of forfeiture before the purchase by Miller, so that the contract at that time was a dead letter, and that neither had any rights under it, and that the relation of confidence between those who had the joint interests under the contract had become dissolved, and they had become as strangers, as to the subject-matter of the contract.
The Savages, the agents of Schuyler and others, on the first of February, 1853, addressed a letter to Burk on the subject, in which they said, “ If you do not pay up on or before March 1st, next, we shall declare same forfeited, and the land shall be for sale.” This letter, upon the expiration of the time specified, without the required payment, is evidence of the termination of the contract at the appointed time. Had they after that time, sued Burk on his covenant to pay the money, this letter of itself would have been sufficient to establish the defense that, they had availed themselves of the right of forfeiture, and had thereby destroyed the contract. Indeed, the letter is something more than a mere threat. Its manifest object was to fix a time by the expiration of which, upon the non-performance by Burk, should of itself terminate the contract. Such, we say, was the manifest meaning of this letter, although in the form of a threat. But as it required no public act to determine the contract by the forfeiture, if we are to understand that letter as but a declaration of intention to terminate it at that time, in the event of non-payment, the fact that' the payment was not made, in connection with the letter, would,' in an action against Burk, be proof that they did terminate it at that time, unless notified before the first of March that they would not do as they said they would in the letter of the first of February. After the first day of March, Burk had a right to assume and to act as if the contract was terminated on that day, and that he was no longer liable upon his covenants to pay, and to make arrangements and contract other obligations upon that hypothesis. Burk swears that he never received that letter, nor was it important that he should. The other parties were under no obligation to notify him that they would forfeit, or that they had forfeited, at any time. The election to claim the forfeiture, instead of relying longer on the covenants, required no public parade to make it valid and binding on both parties. It might be made never so secret, and if but susceptible of proof, it would be obligatory. The facts stated in that letter might as well have been posted on their office door or entered in their journal, and when once established to have been thus stated, the same results would have followed, as follow the writing of that letter. It is true that the agents swear they would have taken the money of Burk at any time before they sold to Miller, but that would have been an act of grace on their part. Their object was to realize the money which Burk had refused to pay, and for this purpose they again put the land into market, asking for it no more than the balance due from Burk. Of course then, they would take the same money from Burk which they were asking for the land from others. This circumstance, therefore, by no means shows that they had not put the land into market before Miller purchased. We think the fair conclusion, from all the evidence, is that the contract was determined on the first of March, 1853, and that after that time, neither party had any rights under it. When the rights of the parties under the contract ceased, the relations resulting from those rights ceased also. Thenceforth all of the parties, Miller, Burk, and Chrisman his assignee, ceased to have any interest in the land, either legal or equitable, and Miller had as much right to purchase as any third person,—as a total stranger to the transaction.
We are of opinion that the decree of the Circuit Court should be affirmed.
Decree affirmed.