The first ruling of the court complained of is the refusal of a jury trial to defendants. The defendants based their right to a jury trial upon the fact that in his petition *Page 353 plaintiff asked judgment for the possession of the real property in controversy. Ordinarily actions for the recovery of specific real property should be tried to a jury when demanded, but this action was in the main one for rescission and cancellation of a contract, one solely of equitable cognizance, wherein the litigants are not entitled to a jury trial as a matter of right. That portion of the petition praying for possession was a mere incident to the action, and followed, as a matter of course, a judgment rescinding and canceling the contract under which the party obtained possession of the property. The right to the possession of the property was not the issue up for trial, but the entire controversy turned upon whether or not the contract should be rescinded. Upon reaching a conclusion that plaintiff was entitled to a rescission of the contract, nothing further was necessary to be done but to enter an order for possession of the property obtained under the contract.
The defendants next present the proposition that the court erred in admitting over their objection the various deeds introduced by plaintiff to prove his chain of title; the defendants claiming that these deeds were void because made at a time when the grantors were out of possession of the property and had not taken the rents and profits thereof for the space of one year before such conveyance.
It appears that, while the title to the real property in controversy was still in the original Indian allottee, a third party had erected a house thereon, and that the defendant had rented this house and had been living in the same with his family some two or three years before entering into the contract in controversy, and on the 7th day of August, 1906, the said third party, for the expressed consideration *Page 354 of $250, made a deed to defendant for the said house "together with whatever right, title, and interest said parties of the first part may have in and upon the land upon which said houses are located."
The evidence does not disclose what claim this third party was setting up to the lots in controversy, or whether he was making an adverse claim of any kind. As defendant executed a contract on the 10th day of November, 1908, to pay plaintiff $1,000 for the lots, it is difficult to reconcile such conduct with an adverse claim to the property. He was already in possession of the property, and had obtained a deed of some nature from his former landlord, and, being thus secure in what he now claims to have been a title to the lots in controversy, he voluntarily entered into a written agreement to pay plaintiff for the same. As long as he had never at any time repudiated plaintiff's title, or shown any hostile acts toward it, he certainly cannot claim to have held adverse possession of the property. As far as the evidence discloses, the defendants never claimed any adverse holding to plaintiff until the institution of this action. In the case of Jennings v.Brown, 20 Okla. 294, 94 P. 557, the exact question here presented was passed upon and decided adversely to defendants' contention, the court in that case quoting with approval 1 Cyc. 1044, as follows:
"The possession of a vendee holding under a parol executory contract of purchase is not adverse to that of his vendor until he has performed the conditions therein or repudiated the latter's title."
The proposition that next confronts us is that defendant Mrs. Ella Moore, wife of defendant M.J. Moore, at the time of the execution of the contract for a deed sued on *Page 355 was living with her husband and family upon the lots in controversy and occupying the same as a home, and, as she did not join in the contract nor sign the same, she was not precluded thereby from her homestead rights. This would be a correct statement of the law if the facts here sustained that contention. The evidence shows that the title to the property in controversy was at all times in the plaintiff or his predecessors. The defendants were never vested with the actual title, and the evidence does not disclose that either of them ever claimed to occupy the premises under color of title even. It is true on the 7th day of August, 1906, defendant M.J. Moore obtained a deed from H.B. McGee and wife to the property in controversy, but the evidence does not disclose that the said H.B. McGee and wife had a title of any nature to the property, and after this deed was obtained neither of the defendants set up any adverse claim to the plaintiff's title, but defendant M.J. Moore in a short while afterwards executed the contract for the deed in controversy, which was an endeavor to obtain the real title to the property. Defendant Ella Moore's occupancy and tenure of the property was not such that she could legally set up any claim to a homestead interest in the property before obtaining title to the same.
We do not think the court erred in admitting in evidence the deeds from the guardian of the original allottee, nor the successive deeds in the chain of title to plaintiff. Nor do we find any merit in defendants' claim that the statutes of limitation had run in favor of defendants.
The defendants next complain that the plaintiff, neither in his petition nor in his proof, offered to return the $1,000 note executed to him by defendant M.J. Moore *Page 356 at the time the contract for deed was entered into.
In 18 Ency. Pleading Practice, 829, we find the following:
"In.suits for the rescission and cancellation of contracts the court applies the familiar maxim of equity, of almost universal application, that he who seeks equity must do equity. The plaintiff will not be permitted to repudiate his contract and still retain the benefits which he has derived from it, and his desire and willingness to restore what he has received must appear in the bill or complaint; otherwise he will have no standing in a court of equity."
Section 986, Rev. Laws 1910, provides that in order to rescind a contract the party claiming a rescission must restore or offer to restore everything of value which he has received from the other party. It seems to us elementary that the plaintiff should have tendered the note both in his pleadings and proof. It would be inequitable and unfair to say that he may still retain the note and yet oust the defendants from the property for which the note was given in payment.
It will be noted that the contract for deed was to be performed on the 10th day of November, 1909, by payment upon the part of the defendants to the plaintiff of the $1,000 note, and plaintiff was then to execute a deed to the lots in controversy, and this clause appears in the said contract:
"It is further agreed that time is the essence of this contract, and, unless said installments shall be paid as herein provided, this contract shall be void, at the option of the party of the first part; otherwise to be and remain in full force and effect." *Page 357
Nothing was done by plaintiff to show his election to rescind the contract until the 12th day of April, 1913, when he filed the petition in this case asking for a rescission of the contract. The defendants contend that, while it was expressly stipulated in the contract that time was of the essence of the same, plaintiff has waived his right to exercise his option to rescind by not taking advantage thereof on the 10th day of November, 1909, the date of performance, or within a reasonable time thereafter.
There is much conflict in the authorities as to the legal status and rights of parties to a contract like the one under consideration where time was expressly made the essence of the same and no step was taken in the matter until the lapse of an interim after the date of performance some of the authorities holding that a party to such contract would not lose his right under the contract to rescind at any future date merely because he did not exercise his option to do so at the date of performance, but they further hold that in order to do so at a future date, it was incumbent upon him to notify the other party that, unless the latter performed his part of the contract, he would at some reasonable time in the future exercise his option to rescind the contract. Other authorities hold that, unless the party exercises his option to rescind within a reasonable time after the date of performance, he forfeits his right to rescind, and must thereafter resort to his legal remedy for relief.
We have been unable to find where our own court has discussed this proposition except in the case of Berry v. Second BaptistChurch of Stillwater, 37 Okla. 117, 130 P. 585, where the following facts were presented: A party sold certain lots to a church organization for a cash *Page 358 payment and two deferred payments, due in August, 1904 and 1905. The lots were taken possession of and a church building erected thereon. The deferred payments were not met, but small payments were made at intervals until 1909, when another payment was tendered. The seller refused the same, and claimed forfeiture of the contract. The entire amount due was then tendered him. He refused to accept it, and suit was brought to enforce specific performance. The court held as follows:
"Even when time is made the essence of the contract, a party may waive a strict compliance with the stipulations with regard to time. * * *
"In this case the circumstances clearly show a waiver by the defendant of a strict compliance with the terms of the contract as to time. The church went into possession under the contract and built a house. After the deferred payments were due the defendant continued to receive partial payments without any intimation that he considered the contract forfeited. He even renewed the original contract in writing, and on the expiration of the year for which the contract was renewed he accepted a partial payment on the contract without claiming a forfeiture. The next year, when the representative of the church offered to make another payment, the defendant for the first time claimed a forfeiture of the contract. The church then tendered the full amount due, and it was refused. To refuse a specific performance would be inequitable. It has often been decided that a party may waive a strict compliance with the provisions of a contract as to the time of performance. See Brown v.Guarantee Trust Safe Deposit Co., 128 U.S. 403, 9 Sup. Ct. 127, 32 L.Ed. 468; Thayer v. Star Mining Co., 105 Ill. 540. It is held in North Dakota that, in order to avail himself of a forfeiture clause in a contract, the party must promptly declare the contract forfeited when the other party fails to perform at the stipulated time. Coughan v. Larson, 13 N.D. 373,
*Page 359 100 N.W. 1088, and authorities cited therein. And the same rule obtains in South Dakota. Pier v. Lee, 14 S.D. 600, 86 N.W. 642. In the case of Kansas Lumber Co. v. Horrigan, 36 Kan. 387, 13 P. 564, the facts before the court were very similar to the facts of this case, and the court decreed specific performance in favor of the purchaser.
We are of the opinion that, when the plaintiff failed to exercise his option within a reasonable time after the default upon the part of the defendant in failing to pay the note on November 10, 1909, the date of performance, this constituted a waiver of his option to declare a forfeiture and demand a rescission, and thereafter if he had desired to exercise his option to rescind the contract, as a predicate therefor he should have notified the defendants of his intention and have given them a reasonable time to avoid the rescission, in case they so desired, by complying with the terms of the contract. While undoubtedly the plaintiff had the right to claim a rescission at the time of the default, as the contract states that time was the essence of the same, yet, having failed to do so, and having permitted the same to run without such election, it would now be unfair to permit a forfeiture without requiring notice thereof and a reasonable time allowed to enable defendants to comply with the terms of the contract should they so desire. While time, in the contract under consideration, was expressly made the essence thereof, yet after it was waived by the conduct of the plaintiff in not exercising his option in a reasonable time after the date of performance, then the essentiality of time was thereby waived, and from then on time was merely material to the contract, and it could not again be made of the essence without timely notice to the other party fixing a certain and reasonable time within which he would be required *Page 360 to perform his part of the contract. Gauhen v. Kerr, 99 Iowa, 214, 68 N.W. 694; Spolek v. Hatch, 21 S.D. 386, 113 N.W. 75;Basse v. Gallegger, 7 Wis. 442, 76 Am. Dec. 225; Hogan v. Kyle,7 Wn. 595, 35 P. 399, 38 Am. St. Rep. 910; Keator v.Ferguson, 20 S.D. 473, 107 N.W. 678, 129 Am. St. Rep. 947; Pierv. Lee, 14 S.D. 600, 86 N.W. 642; Hanschka v. Vodopich, 20 S.D. 551, 108 N.W. 28; Boone v. Templeman, 158 Cal. 290,110 P. 947, 139 Am. St. Rep. 126; Van Dyke v. Cole, 81 Vt. 379, 70 A. 593, 1103.
In the case of Boone v. Templeman, 158 Cal. 290,110 P. 947, 139 Am. St. Rep. 126, in discussing a case very similar to the one at bar, it was said:
"Nonpayment alone does not put the vendee in default. The vendor must tender a deed as a condition to demanding payment of the price, and he cannot, without such tender, declare a forfeiture, or maintain a suit either for the whole price, or for an intermediate installment. McCroskey v. Ladd, 96 Cal. 459, 31 P. 558; Russ v. Muscupiabe, etc., Co., 120 Cal. 526, 52 P. 995, 65 Am. St. Rep. 186; Glock v. Howard, 123 Cal. 18, 55 P. 713, 43 L. R. A. 199, 69 Am. St. Rep. 17; Underwood v.Tew, 7 Wn. 297, 34 P. 1100; Malaby v. Kuns, 3 Ind. 388;Gorham v. Reeves, 3 Ind. 83; McCulloch v. Davidson,1 Ind. 419; Cunningham v. Gwinn, 4 Blackf. (Ind.) 343, and cases cited in McCrosky v. Ladd, supra."
The plaintiff at no time made any tender to the defendants of a deed to the lots in controversy. Having waived his option to declare a forfeiture at the date of performance, it is doubtless a sound legal proposition that he could not again claim the right to rescind without giving timely notice of such intention accompanied by the tender of a deed to the property. If the defendants, after such *Page 361 notice and tender of deed, had still refused to perform the contract by payment of the amount due under the contract, in order to lay a complete predicate for rescission, the note itself should then have been tendered back.
It appearing that plaintiff has not complied with the necessary requisites of the equitable action of rescission, in that he has failed to give defendant notice of his intention to declare a forfeiture, and has neither tendered a deed to the property nor offered to return the note, we recommend that the judgment be reversed and remanded.
By the Court: It is so ordered.