(dissenting).
I cannot concur in all that is said in tbe majority opinion. Briefly stated my views are as follows:
First. Plaintiff who seeks tbe equitable relief of having defendant’s rights cut off. and declared’ forfeited by tbe judgment is himself in default, and therefore stands in án unfavorable light in a court of equity. Tbe title which be tendered pursuant to tbe contract, while perhaps good as a matter of fact,, was not a merchantable title as a matter of record, for tbe reason that tbe record disclosed a mortgage on tbe land which was not properly satisfied. At tbe time be tendered tbe deed be bad in bis possession tbe canceled notes secured by such mortgage, and although hé knew that tbe vendee and those claiming under him objected to tbe title because of such defect appearing of record, be made no, mention of tbe fact that be bad such notes in bis pocket. This alone would warrant tbe court in denying him any relief.
*164Second. Conceding, for the sake of argument, that plaintiff had an unquestioned merchantable title of record, and that the vendee, Kuchenbecker, was in default in making the payment due on September 1, 1902, still plaintiff waived such default by not proceeding at once to take advantage thereof as stipulated in the contract. The contract contains the usual stipulation that “in case of failure of the said party of the second part to make either of the payments, or to perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of the parties of the first part, be forfeited and determined, time being the essence of this agreementIt is well settled that the provision that time shall be of the essence of the contract applies to the vendor as well as to the vendee. As said by this court in Fergusson v. Talcott, 7 N. D. at page 190, 73 N. W. 207, “Time being of the essence of the entire contract, it was as much incumbent on the plaintiff to act promptly in giving his notice of cancelation as it was incumbent on the defendants to deliver the wheat on the day specified in the agreement.” Plaintiff waited over three months after the alleged default occui*red before serving notice of his election to declare .the contract forfeited. Three months was held an unreasonable delay in the Fergusson case, supra, and operated as a waiver of the default. I see no reason why a similar holding should not be made in the case at bar. Having waived such default by waiting an unreasonable time, the vendor could not, as he attempted to do, cut the vendee off short by serving a notice such as was served in this case. He was in duty bound to give the vendee a reasonable time in which to make the default good. As I view it, therefore, the contract was not legally forfeited, but was still in force at the time the action was commenced. This being true, how should the rights of the respective parties be adjusted? The vendee, Kuchenbecker, made no appearance in the action and apparently claims no interest under the contract. Defendants Kolb and Brennan appeared, claiming as successors in interest of Kuchenbecker, Brennan as pledgee of the contract as security, and Kolb as the vendee of Kuchenbecker, and therefore his successor in interest, Brennan, has not appealed. The uncontradicted testimony discloses that Kuchenbecker entered into a contract with Kolb, agreeing for a valuable consideration to sell and convey such land to the latter, and subsequently executed and delivered to him a *165deed thereof, and that Kolb paid under such contract to Kuchenbecker the sum of $800 toward the purchase price. It is also undisputed that plaintiff received, under his contract with Kuchenbecker, the sum of $100 to apply on the purchase price, which sum he still retains, although he has parted with nothing and has at all times retained possession and had the use of the land. It , is admitted by the plaintiff that he knew all about Kolb’s purchase from Kuchenbecker, and that Kolb claimed to be his successor in interest. Plaintiff, in effect, repeatedly recognized Kolb as such successor to Kuchenbecker; and, in his notice declaring the contract forfeited, he in fact expressly referred to Kolb as the assignee of Kuchenbecker. He was therefore, in my opinion, both equitably and morally bound to serve Kolb with a proper notice of his election to forfeit the contract. This was not done, and in my opinion, this is an additional reason why plaintiff does not stand in an equitable light, and ought not to enjoy a very favorable position in a court of equity. Notwithstanding all the above facts, I am disposed to agree with my associates that specific performance should not be compelled against plaintiff. After such a long lapse of time and changed conditions as to land values, it would not be consistent with the real equities of the case to thus adjudge specific performance. But I am convinced that if plaintiff is to be awarded equitable relief in this action, it should be only on condition that he do equity by refunding the money received by him on the purchase price. To the extent of such sum, defendants Kolb and Brennan should at least be deemed in equity the. successors in interest or equitable assignees of Kuchenbecker, and such money should be divided between them as their respective rights appear. ' '