Lang v. Hedenberg ( 1916 )

Mr. Justice Baker

delivered the opinion of the court.

3. Vendos and purchases, § 111^*—when evidence insufficient to establish giving of additional time to vendee for payment of purchase price. On a bill to declare forfeited a contract for the purchase of land, evidence held insufficient to establish that vendors agreed to give vendee additional time for payment of the purchase price, it appearing that his refusal to perform was upon the sole ground that he did not have the money to make the payments. 4. Vendos and purchases, § 148*—when purchaser waives objection to title. Where a conveyance is refused on the ground that the purchaser does not have the money, he cannot object to the title. 5. Vendos and purchases, § 135*—when not necessary that vend- or have title to land. It is not necessary that vendors of real estate have title until the time they have agreed to deposit a deed in escrow, if before that time the vendee had made default and could not require the vendors to obtain title. 6. Vendos and purchaser, § 151*—when tender of deed not necessary. Where vendors of real estate in their contract of sale have agreed to deposit the deed with a third party after the vendee has deposited purchase money in accordance with the contract, a tender of the deed is not necessary, and all that is necessary is an offer by the vendors to make a deed and deposit it, providing the vendee would deposit the payments and perform his contract. 7. Vendos and purchaser, § 151*—when tender of deed unnecessary. The law does not require a needless formality, and an actual tender of a deed is unnecessary where the seller is ready, able and willing to perform on his part, and a tender would be a mere useless form. 8. Vendor and purchases, § 118*—when vendor need only prove ability and willingness to perform contract. If before or at the time of performance the purchaser has declared his intention not to perform, or refuses to do so, the seller need only prove that he was ready and willing to perform on his part. 9. Vendor and purchaser, § 118*—when tender of performance by vendor unnecessary. If tender of performance by the vendor would prove ineffectual, the law does not require a vain act, and such tender is unnecessary. 10. Vendor and purchaser, § 111*—when evidence insufficient to show that notice of forfeiture unreasonable. On a bill by a vendor to declare void a contract of sale of land and to require payment of earnest money to complainant by a trustee, evidence held insufficient to show that the notice of forfeiture of earnest money was unreasonable. 11. Equity, § 512^*—when decree does not declare a forfeiture. A decree on a bill by a vendor to declare void a contract of sale of land and to require payment of earnest money is not objectionable where it does not in itself decree or declare a forfeiture but merely decrees that defendant by his own acts prior to the filing of the bill rescinded the contract or caused a forfeiture, and that the title to the earnest money was in complainants at the time the bill was filed. 12. Equity, § 512*—when decree for payment of earnest money does not provide for forfeiture. Earnest money in the hands of a trustee belonging to the seller because of the default of the purchaser cannot be returned to the purchaser but may be decreed to be paid by the trustee to the seller, and such a decree does not provide for the enforcement of a forfeiture. 13. Vendor and purchaser, § 67*—when vendor entitled to earnest money. Earnest money is a guaranty that the contract will be performed, and if the sale goes on, it applies as part payment of the purchase money, but if there is a default on the part of the purchaser, he has no right to recover the deposit and it belongs to the seller.