Wilson, P. J.
The plaintiff in error has assigned the extraordinary number of sixty-three errors, and has made thirty-three points in his printed argument. The practice of thus unduly multiplying points cannot be commended. It is not only wholly unnecessary, but can subserve no useful end. On the contrary, it is an element of weakness in an argument, tending, as it does, to divert the mind from the more important and controlling questions arising in the case. In such a great number of points it is not unreasonable to assume that more or less of them are without any real foundation, and would be seen to be so by counsel upon proper consideration and study when making them; and besides, it ought not to be forgotten, when asking the court. to investigate such a mass of points, that there is a limit to the endurance of even the judicial mind.
We shall not attempt to go over all the grounds relied upon by the plaintiff in error, but will confine ourselves to two or three, either of which we deem sufficient to necessitate a reversal of this decree.
The bill, as originally filed, was a bill praying that the agreement between Drexel and the Vails, for the sale of the-lands, be declared null and void, by reason of the failure of the Vails to pay the balance due on the purchase money, and that the agreement be removed as constituting a cloud upon complainant’s title. ¡No offer was made to convey to the Vails the unsold lands upon their paying the balance due, nor to assign to them the outstanding contracts with purchasers, of which there were a large number, and upon which various amounts were-dué. The bill was in substance and effect a bill for a decree of forfeiture of all Vails’ rights under the contract.
We are aware of no principle of equity law, nor have we been able to find any adjudicated case, which authorizes a bargainer of. land to come into a court of chancery, after having received a part of the purchase money, and ask for a decree against the purchaser forfeiting the contract. Compensation, and not forfeiture, is the doctrine of equity. While courts of equity, not less than courts of law, recognize the right of parties to a contract to stipulate for penalties and forfeiture, and while, on a proper showing, courts of equity will always relieve against forfeitures, it is a rule of universal application that they will never enforce either a penalty or a forfeiture. 2 Story Eq. § 319; Livingstone v. Tompkins, 4 Johns. Ch. 431; Popham v. Bampfield, 1 Vern. 339; Hornburg v. Baker, 1 Pet. 232, 236.
A party who seeks the enforcement of a penalty, or relies on a forfeiture, must seek his remedy in a court of law, and not in a court of equity, where he is only entitled to relief upon an equitable basis. If, therefore, complainant’s case had been left to stand upon the bill as originally filed, seeking only a cancellation of the agreement, and the forfeiture of complainant’s rights thereunder, the court might properly have refused to entertain it for want of equity, apparent on the face of the bill.
But by the amendment, though only in the prayer of the bill, the case assumed a different aspect. The amendment recognized the contract as still in force, and treated it as a subsisting security for the balance due on the unpaid purchase money. It asked the court to fix a time within which the defendants “ should pay all such sums of money accrued, or to accrue,.due under and by reason of said contract, to be determined on an accounting, etc.; ” and prayed that in default of such payment, within a time to be fixed by the court, the defendants should thereafter be forever barred and foreclosed from asserting any interest in or claim to the property under the contract or its amendments. Acting upon this prayer, the court decreed the payment of the money within sixty days, and that in default thereof, the defendant’s rights should be foreclosed as prayed. Thus, the complainant by his bill, and the court by its decree, treated the contract as still subsisting, but liable to be defeated in the future.
This brings us to examine briefly the proper construction to be placed upon a contract of this nature, and the rights of the parties to it in respect to their remedies in a court of equity. It is not necessary to determine whether the parties to this agreement occupy the technical relation to each other of mortgagor and mortgagee, or whether the agreement is to be regarded as a conditional sale.
Under an agreement for the sale of land, the vendor has an equitable lien on the property for the unpaid purchase money. In equity the vendee is considered the owner, and his estate is attended by nearly all the incidents of - actual ownership. As between the vendor and vendee, the latter is regarded as a trustee for the former for the purchase money, and the equitable lien of the vendor exists in all cases unless there is either an express or an implied agreement to waive it. In Story’s Equity, Vol. 2, § 1217, it is said: “ But there are liens recognized in equity whose existence is not known, or obligation enforced in a court of law, and in respect to which courts of equity exercise a very large and salutary jurisdiction. In regard to these liens it may be generally stated that they arise from constructive trusts. They are, therefore, wdiolly independent of the thing to which they are attached, as a charge or encumbrance, and they can be enforced only in a court of equity. * * * Of this we have a strong, illustration in the well known doctrine of courts of equity, that the vendor of land has a lien on the land for the amount of the purchase money, not only against the vendee himself, and his heirs and other privies in estate, but also against all subsequent purchasers having notice that the purchase money remains unpaid; to the extent of the lien the vendee becomes trustee for the vendor.” See also, Greene v. Greene, 1 Johns. Ch. 308; Clark v. Hall, 7 Paige, 382; Bradley v. Bosby, 1 Barb. Ch. 125; 3 Lead. Cas. in Equity, 74 and notes; Thompkins v. Seeley, 29 Barb. 213; Fisk v. Potter, 2 Keyes, 64; Champion v. Brown, 6 John Ch. 398. In respect to this lien the purchaser under an executory agreement stands in no other or different footing from that of a grantee under a conveyance of the legal title.
The lien is in rem, and the vendor may come into a court of \ equity in the first instance to enforce it, without first resorting to a suit at law torecover the amount due. 2 Story’s Eq. § 1216 b. in note.
In the light of these principles the complainant’s remedy, if he chose to come into a court of equity rather than to stand, on his rights at law, was plain and simple. He had a right to an accounting in respect to the payments and the amount-of the balance due, and a decree for the sale of the lands; or-upon a proper showing, a decree of strict foreclosure; though' ordinarily, the mode of enforcing a lien in equity should be' by a sale of the property to which it is attached. 2 Story’s. Eq. § 1217.
The decree which the complainant obtained was in the na-ture of a strict foreclosure. As such we do not think it was warranted under the proofs. The Vails had entered upon the performance of the contract, and had paid upwards of seventy thousand dollars of the purchase-money, and nearly thirty thousand dollars for improvements on the land, and other expenses incident to making sales.
Vichólas J.
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Wilson, P. J.
The plaintiff in error has assigned the extraordinary number of sixty-three errors, and has made thirty-three points in his printed argument. The practice of thus unduly multiplying points cannot be commended. It is not only wholly unnecessary, but can subserve no useful end. On the contrary, it is an element of weakness in an argument, tending, as it does, to divert the mind from the more important and controlling questions arising in the case. In such a great number of points it is not unreasonable to assume that more or less of them are without any real foundation, and would be seen to be so by counsel upon proper consideration and study when making them; and besides, it ought not to be forgotten, when asking the court. to investigate such a mass of points, that there is a limit to the endurance of even the judicial mind.
We shall not attempt to go over all the grounds relied upon by the plaintiff in error, but will confine ourselves to two or three, either of which we deem sufficient to necessitate a reversal of this decree.
The bill, as originally filed, was a bill praying that the agreement between Drexel and the Vails, for the sale of the-lands, be declared null and void, by reason of the failure of the Vails to pay the balance due on the purchase money, and that the agreement be removed as constituting a cloud upon complainant’s title. ¡No offer was made to convey to the Vails the unsold lands upon their paying the balance due, nor to assign to them the outstanding contracts with purchasers, of which there were a large number, and upon which various amounts were-dué. The bill was in substance and effect a bill for a decree of forfeiture of all Vails’ rights under the contract.
We are aware of no principle of equity law, nor have we been able to find any adjudicated case, which authorizes a bargainer of. land to come into a court of chancery, after having received a part of the purchase money, and ask for a decree against the purchaser forfeiting the contract. Compensation, and not forfeiture, is the doctrine of equity. While courts of equity, not less than courts of law, recognize the right of parties to a contract to stipulate for penalties and forfeiture, and while, on a proper showing, courts of equity will always relieve against forfeitures, it is a rule of universal application that they will never enforce either a penalty or a forfeiture. 2 Story Eq. § 319; Livingstone v. Tompkins, 4 Johns. Ch. 431; Popham v. Bampfield, 1 Vern. 339; Hornburg v. Baker, 1 Pet. 232, 236.
A party who seeks the enforcement of a penalty, or relies on a forfeiture, must seek his remedy in a court of law, and not in a court of equity, where he is only entitled to relief upon an equitable basis. If, therefore, complainant’s case had been left to stand upon the bill as originally filed, seeking only a cancellation of the agreement, and the forfeiture of complainant’s rights thereunder, the court might properly have refused to entertain it for want of equity, apparent on the face of the bill.
But by the amendment, though only in the prayer of the bill, the case assumed a different aspect. The amendment recognized the contract as still in force, and treated it as a subsisting security for the balance due on the unpaid purchase money. It asked the court to fix a time within which the defendants “ should pay all such sums of money accrued, or to accrue,.due under and by reason of said contract, to be determined on an accounting, etc.; ” and prayed that in default of such payment, within a time to be fixed by the court, the defendants should thereafter be forever barred and foreclosed from asserting any interest in or claim to the property under the contract or its amendments. Acting upon this prayer, the court decreed the payment of the money within sixty days, and that in default thereof, the defendant’s rights should be foreclosed as prayed. Thus, the complainant by his bill, and the court by its decree, treated the contract as still subsisting, but liable to be defeated in the future.
This brings us to examine briefly the proper construction to be placed upon a contract of this nature, and the rights of the parties to it in respect to their remedies in a court of equity. It is not necessary to determine whether the parties to this agreement occupy the technical relation to each other of mortgagor and mortgagee, or whether the agreement is to be regarded as a conditional sale.
Under an agreement for the sale of land, the vendor has an equitable lien on the property for the unpaid purchase money. In equity the vendee is considered the owner, and his estate is attended by nearly all the incidents of - actual ownership. As between the vendor and vendee, the latter is regarded as a trustee for the former for the purchase money, and the equitable lien of the vendor exists in all cases unless there is either an express or an implied agreement to waive it. In Story’s Equity, Vol. 2, § 1217, it is said: “ But there are liens recognized in equity whose existence is not known, or obligation enforced in a court of law, and in respect to which courts of equity exercise a very large and salutary jurisdiction. In regard to these liens it may be generally stated that they arise from constructive trusts. They are, therefore, wdiolly independent of the thing to which they are attached, as a charge or encumbrance, and they can be enforced only in a court of equity. * * * Of this we have a strong, illustration in the well known doctrine of courts of equity, that the vendor of land has a lien on the land for the amount of the purchase money, not only against the vendee himself, and his heirs and other privies in estate, but also against all subsequent purchasers having notice that the purchase money remains unpaid; to the extent of the lien the vendee becomes trustee for the vendor.” See also, Greene v. Greene, 1 Johns. Ch. 308; Clark v. Hall, 7 Paige, 382; Bradley v. Bosby, 1 Barb. Ch. 125; 3 Lead. Cas. in Equity, 74 and notes; Thompkins v. Seeley, 29 Barb. 213; Fisk v. Potter, 2 Keyes, 64; Champion v. Brown, 6 John Ch. 398. In respect to this lien the purchaser under an executory agreement stands in no other or different footing from that of a grantee under a conveyance of the legal title.
The lien is in rem, and the vendor may come into a court of \ equity in the first instance to enforce it, without first resorting to a suit at law torecover the amount due. 2 Story’s Eq. § 1216 b. in note.
In the light of these principles the complainant’s remedy, if he chose to come into a court of equity rather than to stand, on his rights at law, was plain and simple. He had a right to an accounting in respect to the payments and the amount-of the balance due, and a decree for the sale of the lands; or-upon a proper showing, a decree of strict foreclosure; though' ordinarily, the mode of enforcing a lien in equity should be' by a sale of the property to which it is attached. 2 Story’s. Eq. § 1217.
The decree which the complainant obtained was in the na-ture of a strict foreclosure. As such we do not think it was warranted under the proofs. The Vails had entered upon the performance of the contract, and had paid upwards of seventy thousand dollars of the purchase-money, and nearly thirty thousand dollars for improvements on the land, and other expenses incident to making sales.
Vichólas J. Vail, who had succeeded to all the rights of Vail & Son under the contract, had died, and at the time of his death was not in default, the time of payment having been extended by the last modification until January 1, 1875. There was no proof that the unsold land and outstanding contracts were a scanty security for' the unpaid balance due, nor that Vail’s estate was insolvent. Under these circumstances no proper case was made for a strict foreclosure. But aside from this, and conceding a proper case had been made, the time limited by the decree for the payment of the money was only sixty days. This was not sufficient. The Supreme Court has repeatedly held that in case of an irredeemable sale of real estate not less than ninety days should be given, and when the amount is large, a longer period. Link v. Architectural Iron Works, 24 Ill. 551; Mills v. Heeney, 35 Ill. 173; Farrell v. Parlier, 50 Ill. 274; Cronan v. Frizell, 42 Ill. 319; Claycome v. Cecil, 27 Ill. 497; Moore v. Bracken, Id. 23; Strawn v. Coggswell, 28 Ill. 457; Kinzey v. Thomas, 28 Ill. 502. Under the English practice six months was given, and if the debí was large the court usually extended the time for another six months. It is only in exceptional cases that a strict foreclosure will be allowed, and all the conditions rendering such a decree proper should be strictly complied with. In the present case the amount decreed to be paid was very large — $159,000 and upwards — which the defendants were required to pay in sixty days., They were resting under an injunction against making any sales of the land, and from collecting anything on the outstanding contracts with purchasers, on which it appears there was due at the time the bill was filed about $40,000. Under these circumstances not less than six months should have been given for payment; and if the court had allowed a year, it would not have been deetiied unreasonable.
Another valid objection to the decree is the absence of any provision requiring the complainant, in case the money should be paid within the time limited, to convey to the defendants, or to such of them as were entitled thereto, the lands remaining unsold, and to assign and turn over to them the outstanding contracts with purchasers. As was said in Peck v. The Brighton Company, 69 Ill. 200, “The payment of the balance of the purchase-money, and the conveyance of the land were concurrent acts.” Upon' the payment of the money the defendants were entitled to both the land and the contracts, but as the •decree stood, they would have been compelled to resort to further proceedings, after paying the money to obtain them. This they should not have been required to do. The contracts had been placed in the hands of a receiver by order of the court, and were still in his hands when the decree was rendered, and the plaintiff in error was a non-resident of the State.
The decree should therefore have required the complainant upon receiving his money to execute proper conveyances of the land, and to assign and turn over the outstanding contracts.
.It is insisted by the plaintiff in error that the administrator of Uicholas J. Vail should have been made a part}' to the suit. It would be sufficient to say that the record fails to show the appointment of an administrator. Letters were applied for, but so far as appears, none were issued. But aside from this the statute relied on by the plaintiff in error in support of his position, is not susceptible of the construction claimed for it. Ifc provides, in substance, that where land is partly paid for, and he who is seized of the equitable estate dies, the administrator, upon the order of the county court, may sell such real estate, and the money arising therefrom shall be assets in the hands of the administrator; or he may complete the payment for the land, in the name of the heirs, out of the proceeds from the sales of the personal property.
If the persons entitled to administration had taken out letters, it would have been proper to have made them parties. The defendant in error might also, at the proper time, have taken out letters as a creditor of the estate, but he was under no legal obligation to do so. He had a specific lien upon the land covered by his contract, and if he was satisfied to rely upon that for the payment -of the money due to him, he had the right to waive any claim upon the general assets of the estate. The statute was merely designed to authorize the administrator, under the direction of the court, to use the moneys arising from the sales of personal property to complete the payment due from the decedent on a contract made by him while living, for the purchase of land, if he should deem it beneficial to the heirs to do so. It gives no new remedy to the vendor of land, and by no proper construction can it be held to take away any he had before its passage.
Humerous other grounds for a reversal of the decree were urged, which we shall not stop to consider. The decree is reversed and the cause remanded to the court below for further proceedings, not inconsistent with the views herein expressed.
Reversed and remanded.