(dissenting):
The buyer had paid $120,395 of the $245,-000 principal due on the purchase of the 20 acres. An additional payment of $50,895 was due on February 2, 1980. Under the amended agreement, the buyer was entitled to designate 4.24 acres of the subject property for conveyance to him upon making this payment. He made a timely designation and offered to make the Feb. 2, 1980 payment (though not formally tendering the money), but the seller disputed the acreage chosen and offered an alternative 5.2 acres instead. Six weeks after the due date, the seller served a notice of default, and one week later the seller brought this suit and obtained a decree forfeiting the buyer’s interest. The majority affirms that decree on the basis that the seller’s agreement to convey the 4.24 acres was “conditioned upon and not concurrent with” the buyer’s payment, and the buyer made no payment or tender of payment.
The buyer’s payment and the seller’s partial conveyance were concurrent conditions. Simultaneous obligations, each dependent upon the other, are commonplace in real estate contracts. Such obligations should be interpreted as concurrent conditions unless the contract clearly directs otherwise. The language in this contract (“upon receipt of said payment, Sellers will release to Buyer 4.24 acres of land”) does not make these obligations other than concurrent conditions.
As we said in Century 21 All Western Real Estate v. Webb, Utah, 645 P.2d 52 (1982), a contract that contemplates simultaneous performance by both parties — i.e., concurrent conditions — can pose “precisely the sort of deadlock meant to be resolved by the requirement of tender.” Id. at 55. In that circumstance, we held,
[Njeither party can be said to be in default (and thus susceptible to a judgment for damages or a decree for specific performance) until the other party has tendered his own performance. 6 Corbin on Contracts § 1258 (1962). In other words, the party who desires to use legal process to exercise his legal remedies under such a contract must make a tender of his own agreed performance in order to put the other party in default. Huck v. Hayes, [Utah, 560 P.2d 1124 (1977)]; 15 Willi-ston on Contracts § 1809 (3d ed. W. Jae-ger 1972). [Emphasis supplied.]
Id. at 56.
Under the quoted rule, the district court’s finding that this buyer madé no payment or tender of payment would prevent the buyer from suing for specific performance of the seller’s promise to make the partial conveyance. But the buyer’s nonperformance does not entitle the seller to a decree forfeiting the buyer’s interest unless the seller has tendered performance of his own concurrent obligation — to convey the acreage designated by the buyer. Since the seller made no such allegation and the court made no such finding, the decree of forfeiture was inappropriate. I would reverse.
HOWE, J., concurs in the dissenting opinion of OAKS, J.