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eBook details

• Title: White v. Jewett
• Author : Supreme Court of Montana
• Release Date : January 30, 1938
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 53 KB

Description

Vendor and Purchaser ? Default of Purchaser ? Cancellation of Contract ? Remedies ? Waiver of Right to Maintain Action ? Mortgages. Mortgages ? Foreclosure Suit ? When Only Statute Applicable. 1. Section 9467, Revised Codes, declaring that there is but one action for the recovery of a debt or the enforcement of a right secured by mortgage on real or personal property, i.e., an action for the foreclosure of the mortgage, applies only to actions for the recovery of debts or the enforcement of rights secured by a mortgage, or what amounts to a mortgage in law, and has no application to an action for the cancellation of a land contract brought by the vendor. Vendor and Purchaser ? Breach of Contract of Sale of Land ? Remedies. 2. Where a contract for the sale of land provides a remedy for breach of its provisions but does not make such remedy exclusive, a party may pursue any remedy which the law affords in addition to that provided by the contract. Same ? Breach of Contract by Purchaser ? Extension of Time of Payment ? Frazier-Lemke Act Inapplicable. 3. A defaulting purchaser of farm lands in an action to cancel the contract for his failure to make the payments provided for therein - Page 417 is not in position to complain of the failure of the trial court to grant him an extension of time within which to pay the indebtedness under the provisions of the so-called Frazier-Lemke Act (11 U.S.C.A., sec. 203), federal courts alone having jurisdiction under the terms of that Act. Same ? Default by Purchaser ? Remedies Available to Vendor. 4. A vendor of farm lands who upon default of the purchaser to make the payments specified in the contract of sale, has pursued one of the remedies available to him to its conclusion cannot thereafter have recourse to another. Same ? What Does not Constitute Waiver of Right of Vendor to Cancel Contract of Sale. 5. Where a contract of sale of lands provided that the vendor could declare all payments due thereunder at once due and payable upon any default of the purchaser and that he could thereupon cancel the contract, due notice having been given stating the items delinquent, and, after giving such notice, the vendor later extended the time for payment of the principal but not of the past due interest and unpaid taxes, and after commencement of a cancellation action gave a second notice demanding the payment of the principal, such second demand held not to have operated as a waiver of his right to maintain the action nor amounted to an attempt to enforce the contract. Same. 6. Held further, under the facts last above cited, that acceptance by the vendor of certain payments made under another contract of sale of land wherein the purchaser in the instant case was the vendor and which had been assigned to plaintiff as security for the payment of past-due interest on the contract sought to be canceled, did not have the effect of a waiver of plaintiffs right to pursue his remedy for cancellation of the contract.

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