dissenting.
I dissent from the Majority Opinion for the following reasons:
1. When the Wrights, the vendees, sold their equity, approximately 9%, in the contract to their real estate agent, Fleming, without the consent of Maddox, the vendor, they committed a material breach of the contract.
2. When the Wrights moved out of the house so that Fleming could sell the house to another buyer, they abandoned the property.
3. The material breach and abandonment of the property placed Maddox's security interest, approximately 91%, in jeopardy.
4. A second material breach occurred when Fleming prepared a second and new conditional sales contract for the sale of the property between himself and Wesselhoft. This new contract prepared by Fleming further jeopardized Maddox's security interest.
5. As a matter of law, when a vendee has made only a minimal payment on a conditional sales contract for the purchase of real property and later commits a material breach which jeopardizes the vendor's security and has abandoned the *139property, the vendor is entitled to a forfeiture.
6. The evidence does not support the conclusion of fact reached by the Majority that the Wrights were always ready, willing, and able to tender the correct amount of the pay-off. By the terms of the contract, the pay-off was in excess of $18,608.50 since the Wrights had failed to pay the real estate taxes from the beginning of the contract. Maddox had never been offered more than $10,000.00 by Fleming or the Wrights.
Maddox, the seller, had known and befriended Wright when he was a young boy. Later, when Wright found himself a bride and married, Maddox sold the Wrights his home at a bargain price, $15,000.00. The home was purchased on a conditional sales contract dated September 8, 1974, which provided for monthly installments of $125.00 each month, 9% interest on the unpaid balance, and the payment of real estate taxes by the Wrights. Also, if it became necessary for Maddox to pay the real estate taxes because the Wrights failed to timely pay them, then an additional 10% would be charged on the amount of taxes paid by Maddox and this amount would be added to the unpaid balance due on the contract.
When Fleming, the real estate agent, contacted Maddox in 1980 for his consent to assign the contract, Maddox told Fleming that he wouldn't sell the house to anyone else "that cheap". He further told Fleming that he did not want to discuss the matter further since he was not feeling well. There is no evidence that Maddox unreasonably withheld his consent for an assignment.
Later, Fleming contacted the bank where the Wrights made their contract payments. He received from the bank a pay-off figure of $13,608.50. Fleming was told by the bank that he would have to obtain the actual pay-off figure from Maddox. Fleming called Maddox and offered him a payoff of $10,000.00-some $3,608.50 less than the bank's pay-off figure and less six years of real estate taxes and interest that the Wrights had failed to pay. Fleming never offered Maddox more than $10,000.00 as a pay-off on the contract. The correct payoff could have been calculated by Fleming by merely consulting the terms of the contract and obtaining the real estate tax information from his clients, the Wrights. This he failed to do. This the trial court failed to do even though the contract was admitted in evidence.
Without Maddox's consent to assign the contract, Fleming as the real estate agent for the Wrights purchased the contract interest of the Wrights and accepted their assignment. Later, Fleming prepared a new conditional sales contract and sold the house to Robert Wesselhoft for $27,000.00. The contract provided:
"The parties, Fleming as seller and Wes-selhoft, as buyer are executing a new land contract for $14,000.00 based on a $27,000.00 price and $13,000.00 down at 9% interest, with a five (5) year termination or due date of the unpaid bal ance."
When Maddox learned that the contract had been assigned and resold under a new conditional sales contract and that Fleming was making the payments to the bank instead of the Wrights, he ordered the bank to stop accepting payments from Fleming. Later, he brought this action to recover his property under the terms of the contract.
The Majority admits that the trial court erroneously applied equitable estopple to these facts but went on to say: "It must be recognized that a trial judge sitting in equity is not bound by remedies existing at law. The trial judge is given broad discretion in forming equitable remedies and may mold his decree so as to do equity between the parties," citing Dodd v. Reese (1940), 216 Ind. 449, 24 N.E.2d 995 which does not support this proposition. Dodd was before the court on a motion to strike a petition to intervene. The Court held that Dodd had an interest under Section 2-222, Burns' Ind.Ann.$t.1983 sufficient to allow him to intervene as a party and that the trial court abused its discretion in sustaining the mo*140tion to strike the petition to intervene. The equity discussion by the Court is dicta.
The trial court here is sitting in law not equity. Maddox and the Wrights had executed a contract to purchase real estate. Wrights had only minimal equity, less than 9%, when they failed to obtain Maddox's consent to assign the contract to their real estate agent, Fleming. This was a material breach of the contract. Too, the Wrights moved out of the house, abandoning the property. Later, Fleming prepared a new contract which excluded Maddox entirely. This contract was a contract to purchase the same property for nearly twice the amount of the previous contract, $15,000.00 as compared with $27,000.00, with Fleming as vendor and Wesselhoft as vendee.
Maddox has not only suffered a material breach of the contract but an abandonment of the property by the Wrights to unknown purchasers. It is difficult to imagine a greater jeopardy to Maddox's security interest. Under the law, Maddox is entitled to a forfeiture. There is no room for equitable considerations.
When a vendee has made only a minimal payment on a conditional sales contract for the purchase of real property and later commits a material breach which jeopard: izes the vendor's security and has abandoned the property, the vendor is entitled to a forfeiture as a matter of law. Skendzel v. Marshall (1973), 261 Ind. 226, 301 N.E.2d 641; Goff v. Graham (1974), 159 Ind.App. 324, 306 N.E.2d 758; Morris v. Weigle (1978) 270 Ind. 121, 383 N.E.2d 341; Johnson v. Rutoskey (1984), Ind.App., 472 N.E.2d 620.
I would reverse the judgment of the trial court with instructions to enter judgment for Maddox.