(dissenting).
I disagree with the conclusion reached by the majority. The written agreement is controlling as between the parties. After a careful examination of the “sale with assumption of mortgage and retention of second mortgage”, and in particular, the manner in which the consideration portion of the sale is very neatly described by the use of lettered paragraphs and numbered subparagraphs, it is obvious that the paragraph containing the reverter language or in the alernative a payment of a fee per lot for each lot unsold is nothing more than a penalty clause.
If the buyer had sold all the lots, he would owe nothing further, whereas, if he fails to sell them, he owes an additional sum for each lot unsold. This was nothing more than a penalty clause inserted in an attempt to force the buyer to make a quick sale of the lots. Since it is a penalty clause, I see no way it can be protected by the vendors lien.