dissenting.
I respectfully dissent.
Our code directs that “no owner of real estate ... who shall ... execute a[n] ... instrument for the future conveyance of any such real estate ..., shall have the right to declare a cancellation, termination, or forfeiture thereof or thereunder, except upon written notice to the vendee or purchaser, or his assigns, ... and such notice shall be given ..., notwithstanding any provision or condition in any such instrument to the contrary.” NDCC 32-18-01. (emphasis supplied). While I concur that the county court has subject matter jurisdiction to determine questions of title to real estate, when necessary, I am less certain than the majority of this court that the county court could properly and summarily conclude that there is no enforceable contract for sale of real estate in this case.
The county court ruled:
The purchase agreement required Collins to make a down payment. The Bank would then enter into a contract for deed with Collins. Collins paid only a portion of the down payment agreed to, and the Bank did not enter into the contract for deed. Title to the property was not transferred.
This, like the majority opinion, is no doubt a normal analysis by contract law, but I believe that it is not acceptable real estate law. Real estate law, such as NDCC 32-18-01 determines when a contract to sell real estate is equitably enforceable.
The majority opinion states that the Bank “accepted [Collins] offer by signing the purchase agreement on October 9, 1990, but made a notation conditioning its acceptance upon receipt of the remaining earnest money.” The notation said, “refer to letter to buyer for explanation on balance of earnest money and downpayment.” The contemporaneous letter acknowledged receipt of Collin’s check for $30,000, and went on to say:
In any event, the Bank will agree to accept the balance of the down payment at the time you have executed the enclosed Contract for Deed and returned to the Bank. Your check in the amount of $16,605.00 should accompany the Contract for Deed along with an executed copy of the seller’s closing statement.
The Bank effectively accepted a counteroffer and agreed to future payments.
The Bank’s letter to Collins also recognized that Trouts would be occupying the premises for Collins:
With regard to Mr. Kye Trout, who is presently occupying the property, at your request we have stopped our eviction proceeding with the understanding that this sale will close in the very near future. You have indicated your desire to workout some type of rental arrangement with Mr. Trout for the purpose of essentially taking care of the property until such time as you decide to move back to North Dakota. The Bank assumes no responsibility with respect to any negotiations or agreements which you may have with Mr. Trout subsequent to the Purchase Agreement.
The Bank recognized that Trouts would be in possession for the purchaser.
This letter also recognized that “closing,” designated in the Purchase Agreement for October 15, would be delayed because Collins “will be out of the country for perhaps two to three weeks.” Subsequent letters by the Bank to Collins on November 5 and December 17, 1990, and on January 14 and January 28, 1991, al*751lowed Collins additional time for a payment on the Purchase Agreement, and also agreed to further postpone its eviction proceedings against “Mr. Trout.” In my opinion, this deal progressed further than the “failure of the condition precedent ... fatal to the existence of an enforceable contract for sale of the property” as the majority concludes. In my view, there was an enforceable contract.
Time was not essential, considering the extensions made by the Bank. Payment of nearly twenty percent of the purchase price had been accepted, with an agreement to accept future payments. The Bank knew that Trouts were in possession for the purchaser. Generally, actual possession of land by a tenant is constructive notice of the landlord's rights. 49 Am.Jur.2d Landlord and Tenant, §§ 277 and 278 (1970). “Unless the contract expressly so provided, a purchaser who has been let into possession and paid a part of the purchase price does not forfeit his equitable rights by a subsequent default in the payment of installments of the price.” 77 Am.Jur.2d Vendor and Purchaser § 580 (1975). Because there was an enforceable real estate contract, I believe that it was legally erroneous for the county court to summarily cancel the contract without giving the purchaser, or his assigns — the Trouts, an opportunity to bring current or to redeem.
Summary eviction proceedings are only authorized “after the cancellation and termination of any contract for deed ... or other instrument for the future conveyance of real estate or equity therein.” NDCC 33-06-01(5). Therefore, I respectfully dissent.