concurring specially:
I concur with the Court’s opinion; however, it has modified the trial court’s order of foreclosure which was entered November 3, 1980. In that order, the trial court held that if the plaintiffs did not pay the balance of $12,125.62 the defendant Lockhart may thereafter proceed in an action to foreclose its equitable lien. However, as our opinion points out, Lockhart’s equitable lien is only good as against the vendee’s interest. If the vendee’s interest is acquired by Lock-hart on foreclosure, it still must perform the Trayis-Anestos contract and pay off the vendor’s interest. Furthermore if the vendee’s interest is in default, then the plaintiffs would be entitled to foreclose or *639terminate the vendee’s interest according to the default provisions of the contract. But as this Court’s opinion points out, the defendant Lockhart cannot foreclose its equitable mortgage against the vendee’s interest and thereby deprive the plaintiffs of their title to the property. Only by performing the contract and paying off the vendor’s interest can that be accomplished. And, if at this juncture the vendee’s interest has already been terminated because of default, then the Lockhart equitable mortgage would have been extinguished.
APPENDIX
On May 17, 1976, Financial Credit Corporation sent the following written request to Angelo and Katherine Trayis and to First Security Bank as escrow holder of the land sale contract.
“On July 26, 1974, Peter T. Anestos and Ardath I. Anestos of Pocatello, assigned to Financial Credit Corp. of 117 So. 6th, Pocatello, Idaho, all of their interests in a certain real estate contract dated August 1, 1973, wherein Angelo Trayis and Katherine Trayis, husband and wife, appear as sellers, and Peter T. Anestos and Ardath I. Anestos, husband and wife, appear as buyers. This contract covers a parcel of land located up Pocatello Creek Road, Pocatello, Idaho.
“The assignment was made to Financial Credit Corp. to cover a loan which was granted to Mr. and Mrs. Anestos on July 26, 1974. It is our understanding that First Security Bank, Pocatello, Idaho, is the escrow holder on this contract.
“The purpose of this letter then shall be to serve as notice to you of the interest of Financial Credit Corp. in the above mentioned contract.
“I would greatly appreciate it if Financial Credit Corp. would be notified should Mr. and Mrs. Anestos default in their contract with you.
“If you should have any questions concerning this matter, please do not hesitate to contact me.”
On July 20, 1976, Financial Credit Corporation sent by certified mail identical requests to Edward Berrett, attorney for the Trayises, to the Trayises themselves, and to First Security Bank. On May 12,1978, the day after the bankruptcy proceedings, Lockhart (successor to Financial Credit Corp.) sent the following request to Edward Berrett, attorney for the Trayises:
“I assume you are aware that our office represents The Lockhart Company in this matter. We attended the hearing in Blackfoot yesterday in which Mr. Clark purchased the interest of Anestos in approximately ten acres for $500.00 and a Mrs. Evelyn Hill purchased the Anestos interest in another tract of approximately ten acres for some $700.00. It thus appears that we now are in a position where the Court has, in effect, abandoned this property from the estate. One might naturally assume that Mr. Clark and Mrs. Hill will be in contact with Mr. Trayis concerning the possibility of bringing the contracts to a current status.
“Our concern for The Lockhart Company, quite naturally, is that the contracts be placed in a current status so that no default would be declared. We would hope that no Notice of Default will be submitted in the near future, allowing these people the opportunity to negotiate with your client. However, should you and he determine that a Notice of Default is appropriate, we would be grateful if you would be kind enough to provide a copy of that default notice to us so that we would be aware of the status-and take whatever action might become necessary to protect the interest of our client.”
Rush and Clark instituted this lawsuit approximately eight months thereafter.