(dissenting).
I dissent, suggesting that the main opinion not only confuses legal and equitable principles, as will appear from a cursory reading thereof, but also misconstrues the facts. Its conclusion is based on the assumption that the Leavitts had a duty to convey to Blohm, which is not so. That aspect of this case will be discussed later.
Reduced to the bone, Lynn, under a uniform real estate contract dated November 10, 1956, agreed "to sell and convey’’ the property to Blohm, when and if the latter made all payments called for under the contract.1 On January 10, 1957, by written assignment, Lynn assigned her interest in the contract to Leavitts. She warranted that the balance due thereunder was $9,000. The duty ultimately to convey remained in Lynn. The assignment of the balance due imposed no obligation whatever on the Leavitts to convey. It did impose an obligation on the part of Blohm, who had notice of the assignment, to pay the balance due to Leavitts, all in consonance with simple assignment principles.
It is true that the Leavitts made several gestures to prevent termination of the Lynn-Blohm contract, obviously to secure payment to them of the balance due thereon, which they had bought and paid for. But the obligation to convey to Blohm persisted in Lynn, who, for some unknown reason, was dropped from this litigation.
The main opinion’s analysis of the facts is inaccurate. The statements about the duty of both parties to a contract to perform is Hornbook. Speaking of a seller’s duty to give peaceable possession, also Hornbook, is inapplicable here since it was Lynn’s, not the Leavitts’ duty to insure such peaceable possession. The main opinion concedes that the Leavitts were "assignees of a seller’s interest in a contract to sell the El Rancho” and that “in January, 1957, Verda Lynn had assigned her seller’s interest in the contract to Leavitts.” Being so, it is inescapable that under elementary principles the Lea-vitts, assignees for good and valuable consideration, were entitled to collect such balance. This should end' the matter, but assuming, as does the main opinion, that the Leavitts had some kind of duty to convey to Blohm when and if all payments were made, and simply in answer to such assumed fact, the following circumstances prevail:
One Hancock originally owned the property. A series of uniform real estate contracts culminated in Lynn’s becoming the equitable owner. She sold the property to Blohm under a uniform real estate contract.
*226Leavitts rendered $1,500 to Hancock, obviously to stave off a possible termination of the Lynn-Blohm contract. Hancock would not accept, claiming $2,400 to make current the obligations of his privies.
When Blohm refused to make any more payments in June, 1957, Leavitts had the assignment from Lynn. Before this, in March, 1957, they had made the unsuccessful $1,500 tender to Hancock. On May 27, 1957, prior to Blohm’s refusal to pay, Hancock signed a contract covering the property with one Kartchner, who transferred his interest to Vineyard Investment in August, 1957. This company obviously was the alter ego of the Leavitts who owned all the stock except a couple of shares. Equally obvious at that juncture was the fact that Leavitts had it within their absolute power to acquire title to the motel. Nonetheless, Blohm still refused to pay anything on the assignment during the ensuing five months. Hardly could it' be said that Leavitts had made it impossible for them to convey title which need not have been conveyed under the terms of the contract by anyone until at least 15 years hence. Blohm abandoned the property in January, 1958. At that time Leavitts still had the right to acquire title to the motel by virtue of the Vineyard contract, which actually was assigned to them early in 1958. Even after Leavitts had started suit, it was made clear in Mr. Lea-vitt’s deposition, that he was not averse to clearing delinquencies amounting to about $2,500. It is only reasonable to conclude that his willingness to clear the way for acquisition of title, then within his power, was contingent upon a similar willingness on the part of Blohm to perform her agreement to buy the motel, which she refused to do.
Defendant urges that 1) Leavitts had put it beyond their power to acquire title and that therefore 2) she had a right to rescind. The trial court went along.
As to 1) : Defendant’s chart set forth in her own brief shows the accuracy of what has been set forth above. It indicates clearly that except for a very brief period the Leavitts had the ability to procure title and deliver it to Blohm, if and when the latter performed the terms of the Lynn-Blohm agreement. But she refused to make further payments in June, 1957. In August the Leavitts were parties to an agreement that could have resulted in the obtaining of good title to the motel. Nonetheless, Blohm refused to make payments for the next five months. She then abandoned the property. To say Leavitts had put it beyond their power to obtain title is unrealistic completely, and is contrary to the undisputed chronology of events reflected in defendant’s own chart. Under such circumstances it seems clear that there was no meritorious right of rescission, even assuming a duty on the part of Leavitts to convey. Woodard v. Allen, supra, would seem to be controlling.
*227As to 2): Assuming, arguendo, that Blohm might have had a right of rescission, most assuredly she asserted it too slowly. She remained in possession of the motel for six and one-half months after any such right might have accrued. She did not tender that which she should have tendered in return to assert such right effectively, consisting of any motel income and the reasonable rental value for her own occupancy.2
Plaintiffs clearly are entitled to judgment for the delinquencies.
. Woodard v. Allen, 1 Utah 2d 220, 265 P.2d 398.
. 9 Am.Jur. 388, et seq.