Edgerton v. Peckham , 11 Paige Ch. 352 ( 1844 )

The Chancellor.

As a general rule, time is not of the essence of a contract for the payment of money, upon an agreement for the sale and conveyance of real estate. And I can se^ nothing in the circumstances of this case to justify the court in excepting it from the general rule. The contract, it is true, contains a general provision, that if default shall be made in either of the payments Strobeck shall forfeit all the previous payments, and give up the possession of the premises. This, however, is but the legal effect of the contract without such a provision. For if no such provision had been contained in the agreement, the defendant might have brought an action of ejectment to recover the possession of the premises; which ejectment suit this court would not have restrained, except upon the terms of paying the balance of the purchase money and the costs of suit. Nor could the payments already made, pursuant to the terms of the contract, have been recovered back, if the vendee had refused to complete his purchase; even if this clause of forfeiture had not been inserted in the contract. The question here presented, then, is, whether this clause was intended, by the parties, to deprive the purchaser of all legal and equitable right to the premises, or to the previous payments, if for any cause the last payment should not be made at the precise moment when it became due and payable ; and if so, whether it is not the duty of this court to relieve against such a forfeiture.

The case of Wells v. Smith, (7 Paige’s Rep. 22,) was entirely different from this. There, the performance of the condition precedent, on or before the particular day specified, was essential to the vendor’s security. The deed of the lot was to be delivered on a particular day, and the purchase money was to be secured by a bond and mortgage upon the premises; and to render the security perfectly safe, the purchaser was to build a house of particular dimensions upon the premises before that time, or pay f>1000 of the purchase money on that day, at his election. But he did neither; and by the express terms of the agreement, the vendor was not to give the deed, and take the bond and mortgage on the premises, in that event. In that case, too, the purchaser had only paid for the use of the property; so that there was in fact no forfeiture except the loss of a profitable speculation, which the purchaser failed to obtain the benefit of by his non-performance of a condition precedent to the vesting of the title of the property in him. \

The vice chancellor, in his opinion, has carefully reviewed most of the cases on this subject, both in this country and in England. It will therefore be useless for me again to travel over the same ground in giving my opinion in this case. It is sufficient to say that Í concur in the conclusion at which he arrived, that this is not a case in which the vendor was entitled to insist upon a forfeiture of the contract; and to retain the premises, with the improvements made thereon, as well as the two thirds of the purchase money which he had received upon the contract.^ And that the complainant was entitled to a specific performance. J

The decree appealed from is therefore affirmed, with costs.