Glock v. Howard & Wilson Colony Co.

Citations

• 123 Cal. 1
• 55 P. 713
• 1898 Cal. LEXIS 976

Syllabus

<p>Vendor and Purchaser—Time of Essence of Contract—Default of Purchaser—Action to Recover Payments Made.—Under a contract for the sale of real estate, In which time is made of the essence of the contract and performance by the purchaser is made a condition precedent to a conveyance, and upon his breach of the contract he is declared to forfeit all rights thereunder, and all moneys paid thereon, the purchaser cannot, after his default, without excuse shown therefor, by a tender of the amount due, acquire either an equitable or a legal right to maintain an action to recover back the moneys paid under the contract.</p> <p>Id.—Rescission—Right of Repayment.—It is only when, after breach by the purchaser of a contract of sale making time of its essence, the vendor agrees to a mutual abandonment and rescission of the contract, that the purchaser in unexcused default would be entitled to repayment of Ms money.</p> <p>Id.—Defaulting Purchaser Unable to Rescind.—The purchaser cannot, after Ms own default under such a contract, put the vendor in default by a mere tender; nor can he elect to consider the contract at an end, and recover What he has paid thereon, when the vendor has not abandoned the contract, but stands upon its- ' terms and conditions.</p> <p>Id.—Refusal of Vendor to Convey not a Rescission.—The refusal of the vendor to accept a tender made by a purchaser in default under a contract making time of its essence, and to convey to the purchaser after such default, does not effect a rescission of the contract, nor entitle the purchaser to recover the money-paid.</p> <p>Id.—Equity Follows the Law, when Time is of Essence.—Where time is expressly made of the essence of a contract for the purchase of land, equity will not ignore such provision, but follows the law, and will neither make a new contract for the parties, nor violate that which they have entered into; nor will it relieve a purchaser who has made unexcused default under such a provision, and has not fulfi