Keller v. Lewis

53 Cal. 113

• Court: California Supreme Court
• Decided: July 1, 1878
• Docket: No. 5191
• Status: Published

Opinion

By the Court, McKinstry, J.:

The decree declares the money already paid on the contract ■—and all right of defendants in and to the lands—forfeited.

It is a universal rule in equity never to enforce either a penalty or forfeiture. (2 Story’s Eq., 1319, and cases cited.) On •the contrary, equity frequently interposes to prevent the enforcement of a forfeiture at law. In the view of a Court of Equity, in cases like the present, the legal title is retained by the vendor as security for the balance of the purchase money, and if the vendor obtains his money and interest he gets all he expected when he. entered into the contract. True, he is not bound to wait indefinitely after the failure of the purchaser to comply with the terms of his agreement. If the payments are not made when due, he may, if out of possession, bring his ejectment and recover the possession; but if he comes into equity for relief, his better remedy, in case of persistent default on the part of the vendee, is to institute proceedings to fore-, close the right of the vendee to purchase; the decree usually giving the latter a definite time within which to perform. (Hansborough v. Peck, 5 Wallace, 506.)

Under the circumstances of this case, as presented by the pleadings and evidence, the decree of the District Court should have fixed a day within which the defendants should pay the balance due upon the contract, and costs, etc., or be forever foreclosed of all right or interest in the lands, or to a conveyance thereof.

Judgment and order reversed, and cause remanded, with directions to the Court below to render a decree in accordance with the views herein expressed.