On Petition for Rehearing.
Per Curiam.Defendants have petitioned for a rehearing. They contend that our decision in this case is contrary to the rule announced in Regent State Bank v. Grimm, 35 N. D. 290, 159 N. W. 842. An examination of the decision in the Grimm Case will disclose that in that case we expressly recognized the rule which we invoked in sustaining the judgment in the case at bar.
*555It is also contended that in onr former opinion we held it to be necessary to serve notice of cancelation of a land contract as a prerequisite to the maintenance of an action to cancel such contract; and that in so doing we overlooked chapter 151, Laws of 1917, which provides that such notice “shall not be deemed necessary where the contract in question is sought to be terminated by an action at law or in equity, brought for that purpose upon failure to perform.” This contention is based upon an erroneous premise. We did not hold in our former opinion that service of notice of cancelation was a necessary jurisdictional prerequisite to an action to cancel a land contract. In fact we have expressly held (in another case) that such contract may he canceled by action without the prior service of notice of cancelation. It is' a fact, however, that in many cases such notice has been served prior to the institution of the action to cancel the contract. And obviously a different judgment might properly be rendered where notice of cancelation has been served from that which might be rendered where it has not.
We referred to the fact that notice of cancelation has not been served, in discussing the terms of the judgment rendered by the trial court. It has been the policy of our laws for a long period of years that executory contracts for the sale of land shall not be canceled, and payments thereon forfeited, without first affording the vendee an opportunity to comply with the terms, and obviate the cancelation of the contract. The vendor-may not by stipulation in the contract reserve the right to declare a cancelation; nor can he declare such cancelation except by service of written notice stating the grounds of default. Comp. Laws 1913, §§ 8119-8122. Under the original statute enacted in 1903 (Laws 1903, chap. 201), the vendee was allowed “thirty days after the service of the notice upon him, in which to perform the conditions or comply with the provisions upon which the default shall have occurred.” And such compliance obviated a cancelation, and caused the contract to remain in full force. § 8122, supra. This policy was not only continued in force by chapter 151, Laws 1917, but the time allowed to the vendee in which to make compliance was extended to six months. Of course, where a contract is sought to be .canceled by an equitable action, the court is required to proceed on equitable principles and render such judgment as the equities in the *556case justify. In the case at bar the defendants introduced in evidence a certain settlement agreement. The trial court gave them the benefit of the provisions of such agreement-, and ordered a cancelation of the contract without right of redemption, and awarded the defendants the immediate possession of the premises. In awarding such relief, the court also required the defendants to pay the amount which they had agreed to pay in such agreement. We refused to interfere with this latter provision of the judgment. The views of the court have undergone no change on this point since the decision was handed down.
■ It is insisted, however, that in any event the judgment should be reversed as against Ethel M. Grant, for the reason that she did not sign the settlement agreement. This question is presented for the first time on the petition for rehearing. This fact alone would justify a denial of the petition as to this ground. Sweigle v. Gates, 9 N. D. 538, 84 N. W. 481. But in this, case a denial of the petition also as to this ground may well be placed upon the merits of the proposition. Bor the findings of fact are to the effect that “the plaintiff and defendants entered into The’ agreement in writing.”
The former decision will stand. A rehearing is denied.