(concurring specially): I concur in the final conclusion, of the opinion reached by this court on its own motion, but in my judgment the trial court should have exercised the same equitable considerations. Whatever the wording of this contract was, its essential elements constituted a contract of sale of real property. Plaintiff went into a court of equity to have it declared forféited. There is no reason why the trial court should not have considered the equitable principles developed by the pleadings and the evidence; and especially in view of the fact that such equitable principles appear so clearly, this court feels compelled on its own motion to apply them.