The Leavenworth weekly times. [volume] (Leavenworth, Kan.) 1870-1880, 1879-01-16

BY THE COURT. BREwER, ].
I. January S, 1916, the defendant contracted
to sell to the PiaitnIn, tract of land tor SID
$40 cash, the remainder in two equal annual
payments. The contract naming the pay
IN. nts, ex preSsy stipulated that the times OF
payment shouid be o the essence OF the con-
tract, and that on default thereof the COM
pany should baye the right TO dec are the
contract at an end and tn,reupon al rights
of the purchaser hereunder should cease. IL
a so specified that the land was sold for i'm
provement and cultivation. There was
ihre.-foot vein of coal on the land of which
Brickley had, but the company Lad not
kno~ ledge at the time OF this contract ana
nothing was said by him to IL concerning
such vein of coal. In the fall OF 1876, he went
Oh a visit to indiana, intending TO return in
a few weeks, but while tDeie and in October,
dislOc ,ted his ankle whereby he was con-
fined TO his bed until March, 1877. When he
I.fl Fort Scott there was due him from the
party in whose employ he had been, nearly
enough money 10 make the payment gin
January 1877 and he left said contract with
9th r papers, in the safe of his employ er, but
without saying anything In reference there
TO, or as to making pay ment on his contract
While confined To his bed in Indiana he cor
responded frequently with his employer,
but without SAYING anying concerning said
contract He defaulted on his payment III
January, 1877, and on April 2, 1877, the Com
pany exercised the power OF declaring the
contract at an end ana mailed notice thereof
to Plaintiff, which he received on April 5th,
1877. On April l4th, 1877, Plaintiff arrived in
Fort scott and rendered the full amount OF
The January payment with interest, which
tender was declined. AT the date of the con-
tract there was some talk of constructing a
Railro nd in immediate proximity to the
land, OF which fact Brickley had knowledge,
and about the time of the forfeiture both
Brickiey and the Company ascertain-d that
there was a probability Of its speedy con-
struction, aud at the time OF trial in Decem-
Der, 1871, II was, in fact, in process OF con.
struction The land was then worth s., 100
The excess over the price being due
to the existence of the vein of
coal and the prospect of the speedy con-
stfucted OF the Railroad. Brickley never
went into actual possession of the Iand; held,
/ That while IN agreements Tor the sale OF
real estate the time OF payment Is not ordlnar-
IL of the essence of the contract, yet by ex
press stipulation the parties may make II so
and when SO made, such stipulation IS like
all other sipulstions of the contract, to be
pected and EN- 'orced by all Courts OF Equity
As well as those OF law.
> That under the contract the Company
could exercise its option OF declaring the con-
tract at an end Immediately on the happen
ing OF the default or at aSy time thereafter,
and that when 50 exercised the rights oil the
purchaser under sid contract Ceased at once.
3. That while equity sometimes relieves
against forfeitures Yet ii never does so 10 en-
force. "A hard and unconsclOnabie bargain, or
when the consideration II grossly Inadequate.
1. That Plaintiff having never enter.d into
possession or expended any money In I'M
proving the land. ami being IN default and the
Company rendering back the money II has
received, equity Will not relieve him from his
default CT decree against the Company
specific performance OF the contract.
All the justices concurrlng.
n true copy. Attest: \. HANNAH,
IL > Clerk Supreme court.