#### NELLIE BULLER, Respondent, v. AUGUSTA FALK and Louis Falk, Appellants.

(171 N. W. 823.)

Contracts — contracts for sale of land — cancelation — notice of cancelation.

1. Under § 8120, Compiled Laws 1913, relating to the foreclosure of land contracts, which provides that notice of cancelation must he served “upon the vendee or purchaser, or his assigns,” it is incumbent upon the vendor in a land contract, who has notice or knowledge of the fact that the vendee has assigned his interest in the contract, to serve notice of cancelation upon the assignee.

Contracts — contract for sale of land —notice upon assignee of vendee required.

2. *Held*for reasons stated in the opinion that the land contract in the instant case was not canceled by reason of the failure of the vendor to serve notice of cancelation upon the assignee of the vendee.

Opinion filed March 1, 1919.

From a judgment of tbe District Court of Wells County, *Coffey,*J., defendants appeal.

Affirmed.

*J.J. Youngblood*and *B. F. Whipple,*for appellants.

A vendor is not obliged to regard an assignment in the absence of a proper notice thereof. Comp. Laws 1913, § 7405, 39 Cyc. 1676.

There is no evidence or reason why a court of equity should protect plaintiff from the effect of a statutory cancelation of the contract. Nelson v. McCabe, 163 N. W. 724.

The evidence does not show any tender by plaintiff nor any offer or ability to perform. Beiseker v. Anderson, 116 N. W. 94.

*F. F. McCue,*for respondent.

Where the party appealing does not specify that a review of the entire case is demanded, the supreme court cannot try the case *de novo.*Comp. Laws 1913, § 7846, and rule 31 of this court.

Failure to include all of the evidence offered at the trial in the statement of the case for appeal precludes the appellate court from examin*625
      *ing the*findings of fact in the trial court. Edmondson v. White, 8 N. D. 72 • State v, Scbolfield, 13 N. X). 664.

In. order to cancel a contract for the purchase of land, notice must be served upon the assignee of the purchaser under the contract. Williams v. Cory, 21 N. D. 516; Comp. Laws 1913, § 8120.

Hay in making service acted as the agent of the owner of the land. Comp. Laws 1913, § 6350; Jones v. Bumford, 21 Iowa, 217; Allen v. MeCalla, 25 Iowa, 464; Hever v. Snow (Mass.) 14 Pac. 32.

One who has subjected himself to a forfeiture by breach of contract may, by making compensation, be relieved therefrom. Bennett v. Glas-pell, 15 N. D. 239.

Christianson, Ch. J.

On October 18, 1915, the Citizens State Bank of Sykeston entered into a written contract with one John Boss, whereby it sold and agreed to convey unto him, or his assigns, an 80 acre tract of land in Wells county, upon the performance by said Boss of his part of the agreement. Boss agreed to pay $1,600 for the land, *viz.,*$300 in cash, and $1,300 on demand, with *7*per cent interest from, the date of the contract. The contract also contained this stipulation'. <£It is agreed and understood that as soon as party of the second part puts up buildings on above-described premises that party, of the first part will deliver warranty deed and take back a first mortgage for an amount said party of the first part can place on the same and a second mortgage for the balance, to be paid in five annual instalments.” It is conceded that John Boss paid the $300 cash payment stipulated in the contract. He also testifies that no demand was ever made upon him for the payment of the $1,300, and that the cashier of the vendor bank stated that they would rather have the money continue to earn interest. The cashier, however, denied this. It is undisputed that John Boss afterwards assigned the contract to the plaintiff by written assignment dated November 1, 1916. It is also undisputed that the vendor, the Citizens State Bank of Sykeston, on November 3d, 1916, conveyed the premises to the defendant Augusta Ealk by warranty deed. It is conceded that the defendant had full knowledge of the outstanding contract to John Boss. The defendant admitted that she at no time caused any demand to be made upon John Boss for the payment of the balance due on the purchase price. She did, however, institute proceedings to *626foreclose tbe contract under tbe provisions of §§ 8119-8122, Compiled Laws 1913. Tbe notice of cancelation bears date November 10, 1916, and states that tbe cancelation and termination of tbe contract will take effect npon tbe expiration of thirty days after tbe service thereof. Tbe notice is addressed to “John Boss, *and to whom it may concern.”*It was served npon John Boss on November 11, 1916. At tbe time of tbe service John Boss notified the person serving it that be was no longer interested in tbe matter, but bad sold and assigned all bis interests in the land and tbe contract to tbe plaintiff, Nellie Buller. Tbe grounds of default specified in tbe notice were tbe failure to pay tbe sum of $1,300, with *1*per cent interest from October 18, 1915; and tbe failure to put up buildings on the land. Tbe notice of cancelation was served upon Boss alone. Tbe plaintiff, Nellie Buller, was not served in any manner. On December 13, 1916, she notified tbe defendant Augusta Falk that she held an assignment of tbe contract from Boss, and that she bad the money, and stood ready to pay tbe balance due on tbe contract. Some reference was also made to some alleged defect in tbe title which she desired to have cured. Tbe defendant refused the offer on tbe ground that tbe contract bad already been canceled. Plaintiff thereupon brought the instant action to enforce tbe contract. Tbe trial court, made findings and conclusions in favor of tbe plaintiff, and defendants appeal from tbe judgment entered thereon.

So far as tbe ultimate rights of tbe parties are concerned, tbe important and controlling question in tbe case is whether tbe contract for deed has been- canceled. If it has, then of course tbe plaintiff has no standing whatever. But if it has not been canceled then the contract is binding upon tbe parties to this litigation, and tbe plaintiff is entitled to a conveyance of the premises upon complying with tbe terms of tbe contract.

Tbe only default specified in tbe notice of cancelation worthy of notice is tbe one relating to tbe failure to pay tbe balance due on tbe purchase price. The alleged default in failing to construct buildings is, in our opinion, of no consequence. The stipulation with regard to tbe construction of buildings has already been set out in full. It speaks for itself. It merely provides that when such buildings are constructed tbe vendor will give to tbe vendee a warranty deed and take back certain mortgages for tbe balance due on tbe purchase price. Under tbe *627evidence the trial court was justified in finding that no demand was ever made either upon Boss or the plaintiff for the balance due upon the purchase price, and that the vendor did in fact state to the vendee that there was no use to pay the money “before five years.” The defendant asserts that the service of the notice of cancelation was a demand for payment. This is probably true. But it is also true that, when the notice was served, Boss informed the agent of the defendant who served the notice that he (Boss) was no longer interested in the matter, but that he'had assigned his contract to the plaintiff.

Under the statute relating to the foreclosure of land contracts, notice of cancelation thereof must be served “upon the vendee or purchaser, or his assigns.” Comp. Laws 1913, § 8120. The word “assigns” as used in the statute includes an assignee of the purchaser. Williams v. Corey, 21 N. D. 509, 31 N. W. 457, Ann. Cas. 1913B, 731. And where the vendor has knowledge or notice of the fact that the vendee in a land contract has assigned his interest therein to some other person, it is incumbent upon the vendor to serve notice of cancelation upon such other person. Ibid.

It will be noticed that the notice of cancelation in the case at bar was addressed “to John Boss and to whom it may concern.” The very form of the notice indicates that the defendant supposed that someone besides Boss was, or might be, interested in the matter. When the notice was served on Boss he informed the agent of the defendant who served it that the plaintiff was his assignee and as such properly entitled to be served with notice, and yet no such service was made. We do not believe that under these circumstances the defendant is in a position to insist that the contract has been canceled. At all events the decision of the trial court is just. The defendant Augusta Balk will receive the full amount of the purchase price and interest stipulated for in the contract. We are of the opinion that the judgment should be affirmed, with the further provision that the plaintiff shall pay to the defendant Augusta Balk any taxes which she may have paid upon the premises, with legal interest thereon. Neither party will recover costs on this appeal.