Singleton v. Foster

BISTLINE, Justice,

concurring.

I concur in reversing and remanding, but entertain the notion that the trial court and the parties are entitled to be better advised at this point as to what this Court conceives to be the applicable law. The case going off on a motion to dismiss, predicated on the two statutes of limitation, only the latter of which I believe to have applicability, the only evidence in the record is the title-retaining real estate contract of 1964, and the Foster’s 1970 conveyance of the property to Pichón, subject to the contract with Singletons.

The statements of law set forth in Stockmen’s Supply Co. by Justice Givens are fully in accord with what I have thought the law to have been, what it is, and what it should remain. On this limited record we see only that Singletons were refused a deed when they tendered the contract balance, and proceeded to bring this action for specific performance. Pichon’s deed from Foster on its face states that it is subject to the Singleton contract, adding thereon “that payments of purchase price installments under said contract are in arrears.” This deed contains also an assignment from Foster to Pichón of the Singleton contract rights and causes of action, and, further, that “acceptance of this deed by Pichón constitutes her agreement to hold harmless Foster from all expense, damage and liability resulting from this transfer.”

The record shows no affirmative action taken by Pichón to declare a default, preparatory to forfeiture, for the nonpayment of installments in arrears. A “scheduled completion date” of the Singleton contract is irrelevant; forfeiture by a vendor could not be gained without compliance with the •contract provisions for giving notice that the arrearages were being considered as a default, and allowing time for curing the same.

“By the terms of the written contract, if respondent Company wanted by reason of her default in the payments, to end and conclude her right to purchase, it had to give notice, which respondent Company never alleged it did and made no attempt to prove it did, and the record discloses beyond peradventure of a doubt that no such notice was given or forfeiture declared as recited in the written contract.” Stockmen’s Supply Co., 72 Idaho at 62, 237 P.2d at 617.

The salient reason for selling land on a title-retaining contract, rather than giving deed and taking back a note and purchase money mortgage, is to place the seller in a position to terminate the contract for the buyer’s uncured default, predicated on a notice of arrearages and demand for payment. There is no situation calling for any consideration of the statute of limitations until the contract is repudiated, and a vendor can only repudiate it by first complying with the provisions of his own agreement. Having repudiated, i. e., declared a forfeiture upon noncompliance with demand for payment, usually called notice of default, any action contemplated by the buyer must then be brought within the period of the statute. This the Court so stated in Stock-men’s Supply Co. Here the statute could commence running against Singletons when Pichón refused to accept the purchase price payoff and refused to give the deed; this, too, would be a repudiation of the contract. In Watkins v. Watkins, 76 Idaho 316, 281 P.2d 1057 (1955), this Court again noticed that a cause of action did not accrue until there was a repudiation of the contract.

In Williamson v. Smith, 74 Idaho 79, 256 P.2d 784 (1953), this Court unequivocally stated, as the rule in this state, quoting from Stringer v. Swanstrum, 66 Idaho 752, at 760, 168 P.2d 826, at 829 (1946).

“Where a contract for sale of real estate makes time of the essence, and provides for a forfeiture of the vendee’s rights for failure on his part to make payments at certain times, a continued course of conduct on the part of the vendor in failing to declare a forfeiture, thereby leading the vendee to believe that the vendor waives a strict compliance with the terms of the contract, works a waiver of the vendor’s right to declare a forfeiture, unless and until he gives the vendee reasonable notice of his intention to do so, and a reasonable opportunity to make the delinquent payments.” 74 Idaho at 82-83, 256 P.2d at 785.

This same statement was first made in Sullivan v. Burcaw, 35 Idaho 755, 208 P. 841 (1922), and reiterated in Stockmen’s Supply Co. In Sullivan, as observed by the Court in Stockmen’s Supply Co., “It will be noticed the above rule was announced even though the contract did not require notice of forfeiture as herein.” 72 Idaho at 63, 237 P.2d at 617.

The record here does not sustain the trial court in holding that the Singletons’ claim for relief was ba,rred by the statute of limitations. The 12(b) motion should have been denied.