Comstock v. Brosseau

Citations

• 65 Ill. 39

Syllabus

<p>1. Vendor and vendee—right to declare forfeiture. Where an executory contract for the sale and conveyance of real estate gave the vendor an option to declare a forfeiture of the contract and all payments made, on failure of the vendee to meet any of the deferred payments, or breach of any of his covenants: Held, that the vendor could not rightfully declare a forfeiture of the contract, and at the same time retain the notes of the vendee, given for the deferred payments. He should surrender, or offer to surrender, such securities.</p> <p>7. Same—right to resume possession. Where the plaintiff, holding the legal title to certain mill property, by an executory contract, sold the same to A and B, taking notes for the unpaid purchase money, reserving the right to declare a forfeiture of the contract for non-payment, and after two of the notes matured, the vendor, without having declared a forfeiture, took possession, claiming that B surrendered the possession to him: Held, that, not having declared a forfeiture, he had no right to resume possession without the consent of the vendees; and that even if B had given such consent, it could not affect the rights of A, and the most that the vendor could claim was to occupy the premises as a tenant in common with A.</p> <p>3. Trespass—when the damages must be shown. The plaintiff, holding the legal title to mill property, bargained for the sale of the same to A and B, taking their notes for the unpaid price, reserving a right to forfeit the contract for non-payment of any of the notes. Default was made by the vendees, in not paying the two first notes when due. The vendor, then took possession of the mill, claiming that B had assented to it, but which was denied. At this time, the vendor had not declared any forfeiture, and was not in a position to do so, he not having surrendered, or offered to surrender, the notes. He continued in possession about 12 days, when A, finding no one in the mill, re-entered. The vendor sued him