DISSENTING OPINION
Pivarnik, J.— I dissent from the majority opinion which proposes to grant transfer, vacate the opinion of the Court of Appeals, and reverse the judgment of the trial court.
I am in total disagreement with the majority opinion in that its effect is to set aside a legal contract entered into by the parties, and to substitute contract provisions that were not contemplated or bargained for by any or all of the parties involved.
When parties enter into negotiations for sale and purchase of real estate, there are generally two contract arrangements that can be chosen to affect this transfer. One of these is the mortgage arrangement, of course, which is most usually done through a professional banking or financial institution. The purchaser receives the legal title to the property and executes a note to the financial institution, together with a mortgage or pledge of the real estate for a payment of said purchase price. In the mortgage arrangements, the seller receives his full payment and no longer has an interest in the property. Foreclosure of this mortgage is the method of recovery for a mortgagor in the event there is a default in the payment of the purchase price. This arrangement can also be entered into, of course, by individuals, but this is rarely done.
In the land contract arrangement, such as is presented by the pre*128sent case, individuals who wish to enter into an agreement to buy and sell real estate contract between themselves as to conditions of that sale and purchase. This method of contract is selected by the parties to meet the needs of their particular transaction. It has advantages to one or both of the parties because it presents terms as to down payment, interest rate, and other features of immediate transfer, different from a mortgage arrangement, which terms are more convenient or desirable for the parties at that particular time. The point I make is that mortgages and land contracts are two different types of contracts entered into by the parties openly, willingly, and to meet their own purposes. I see no need for a lengthy discussion here as to the differences in the two contract arrangements as such differences are apparent, but I would simply state that appeals courts should honor contracts as they were made by the parties and enforce them regardless of where the chips may appear to fall from this perspective.
There is no denial by anyone, including the majority, that the contract in this case was breached by the purchasers. In Skendzel v. Marshall, (1973) 261 Ind. 226, 301 N.E.2d 641, this court found that a land sale contract is akin to a mortgage, and that therefore the remedy of foreclosure is more'consonant with notions of fairness and justice. The problem with this view is that while a land sale contract may be akin to a mortgage, it is not a mortgage, and the remedy of foreclosure is not the remedy the parties agreed to. The standards set down in both Skendzel and in the majority in this case, for finding that forfeiture is appropriate, require the court to take the “mechanistic approach” and examine the facts and circumstances of the parties such as the amount paid on the contract, the amount due and owing, and the apparent gain or loss of one party or the other. Neither Skendzel, nor the majority in this case, holds that land sale contracts are illegal, unconscionable, or contrary to law. They merely find that in some cases they will be enforced and that in some cases they will not be. Because the trial court is invited to use its own judgment as to when it would be fair and just to enforce a contract, and when it would not be, parties entering into contracts, their attorneys advising them, and trial courts hearing the matters would have difficulty in knowing what the law is in any given case.
*129In this case, there is an admission that there was a breach of the contract by the purchaser, that the improvements on the property had become in extreme disrepair, and that the purchaser had been absent from the property for at least two years. The trial court and the Court of Appeals found that he had abandoned the property. This was questioned by the dissenting opinion in the Court of Appeals and by the majority in this court. By examining the facts in this cause, the majority finds that Morris had paid 29.7% of the contract price, and that he had planted crops through a tenant on the property each year and therefore had not abandoned the property. If we are going to conjecture on facts as they reflect on the fortunes of the parties herein, it might be noted that the 29.7% investment of the purchaser in the property might have substantially resulted from his having received money for crops during these years, which crops were taken from the land and applied to the purchase price.
Equity has been imposed where there has been evidence of fraud, overreaching, unjust enrichment, or a result that was unsuspected or unreasonably unfair to one party or another. None of these conditions is present in this case. These parties entered into a contract which was breached by the purchasers and the seller seeks remedy through the provisions of the contract entered into by the parties. The majority opinion now offers him the remedy of foreclosure and a deficiency judgment against the party, who has not paid him under the contract up to this point and under circumstances where he will no longer have the property as security for its payment. It offers him the remedy of foreclosure on a mortgage for which he never contracted, and further offers him remedies under Ind. Code § 32-8-16-1 (Burns 1973), as modified by Ind. R. Tr. P. 69(C), which laws were written to protect those who have mere lien interests in property, and not the title under sale on a land contract.
I would grant transfer in this cause, overrule the case of Skendzel v. Marshall, and affirm the trial court.
Givan, C.J. concurs.NOTE — Reported at 383 N.E.2d 341.