I concur in the conclusion that a writ should issue, directing the trial court to enter judgment, but I am not in favor of the entry of the particular judgment directed in the majority opinion. I still believe this court was right in the last opinion in holding that the verdict of the jury was not advisory and that the Lawrences (in addition to the amount of the Devereaux mortgages which they bad assumed) were entitled to pay the balance due on the purchase price of the land, according to the contract, less the sum allowed by the verdict of the jury for the reasonable rental value of the land for the three years they were out of *Page 210 possession. However, the study I have made of the facts, especially the conditions existing when the lastremittitur went down and about which we are now for the first time advised, has convinced me that this court went too far in directing the entry of a judgment in favor of the Lawrences and against Shull for $21,690, in the event that Shull refused to convey the land and the Lawrences were "ready, able and willing to perform," and that a serious injustice has resulted therefrom. The matter of entering any independent judgment against Shull was never an issue in the case and was not before us. It is true that, after the first decision in this case, the lower court and counsel thought it necessary for the court to find what was due Shull and, to do that, it was thought necessary to find out how much of a credit or offset the Lawrences were entitled to for the rental value of the land for the three years Shull had kept them out of possession prior to this court's first decision, and that was what the second trial was about. It is important to notice (for the majority neither mentions nor discusses it) that in the second trial, it was stipulated in open court that the Lawrences owed Shull $43,316.92, "less any amounts" that should be allowed the Lawrences in that trial; and judgment was accordingly entered for Shull for $43,416.92, less the amount found by the court for the rental value of the land for the three years the Lawrences were out of possession. This court, in the second opinion said, "The court should have entered judgment for the amount of the verdict, such sums to be applied on the balanceof the purchase price agreed upon, $43,316.92." There was, therefore, due Shull $43,316.92, and the Lawrences were entitled to a credit thereon of $21,690.
But we now have a situation which was not before us when we handed down the last opinion. The Lawrences failed to pay the Devereaux mortgages, which they had assumed and agreed to pay. The mortgages had been foreclosed, and for that reason Shull could not convey the land and the Lawrences could not purchase it. In view of this situation, the majority directs that a judgment of $21,690 be entered for *Page 211 the Lawrences, but that no judgment be entered for Shull. And although it was stipulated that this $21,690 should be applied as a credit on what was due Shull and was so decided by this court, the majority overlook these facts and direct the Lawrences to recover $21,690 from Shull when that sum allowed by the jury was never intended by the parties as anything more than a credit on the larger indebtedness owing by the Lawrences to Shull. Even under the literal direction of this court in the last opinion, the entry of this $21,690 judgment is not justified. By not paying the Devereaux mortgages and permitting them to be foreclosed, the Lawrences put themselves in a position where they are now neither ready nor able to perform on their part. If the Lawrences have any cause for complaint against Shull, it is not for $21,690, which they stipulated should be a credit on what they owed Shull, but it is for a breach of his contract to sell them the land. Neither party is now in position to perform the contract, and there is neither reason nor justice in permitting the Lawrences to take Shull's money since they owe him a lot more than he owes them.
For eight or nine years, from the early spring of 1915 until the issuance of the sheriff's deed in the mortgage foreclosure, with the exception of three years, the Lawrences lived on, farmed and enjoyed Shull's land. They never, according to the record, paid Shull one cent as rent, nor one dollar on the purchase price. There is no record that they ever paid anything on the interest or the principal of the Devereaux mortgages, yet because Shull kept them off of his land three years, this court has commanded the trial court to enter a judgment enabling the Lawrences to take from Shull $21,690, even in view of the stipulation between Shull and the Lawrences that such amount should be a credit on the larger amount they owed Shull.
Petition for rehearing denied. *Page 212