Page:North Dakota Reports (vol. 48).pdf/745

 From the crops of 1919-20 he received paymnetpayment [sic]........ 2,413.20

He received a good well on the land 600.00

-with considerable other improvements.

And on December 10, 1920, within 10 days after receiving nearly $1,000, he commenced this action to forfeit the land contract and all payments because of the nonpayment of illegal and excessive taxes for two years and the non-payment of about $1,000 on the mortgage which defendant assumed. The action is under a Shylock clause in the contract which provides for such a forfeiture. Defendant answers that because of that clause he refused to sign the contract, and that to induce him to sign the plaintiff agreed that he would not take any advantage of the forfeiture, and that he himself would advance the money to pay interest on the mortgage and to pay the taxes. Defendant by answer asks that the contract be reformed and corrected so as to express that agreement; but the trial court has ignored that issue and all the defendant's equities and has given a judgment of forfeiture and an order ousting the defendant and giving plaintiff possession. Surely that seems like a mockery of equity and justice, and it may not be covered. up by a multitude of words. Of course, the defendant acted the part of a sucker when he relied on the oral agreement to protect himself against the forfeiture clause. Still he had a right to rely on it and to rely on the court to reform the contract. No evidence is needed to show that the forfeiture clause is unconscionable, and here is the plain statute:

"For the purpose of revising a contract it must be presumed that the parties thereto intended to make an equitable and conscientious agreement."

The court has wholly ignored that statute and the request to revise the contract. Hence the duty of this court is to reform the contract by striking out or holding void the forfeiture clause. We must not ignore the rule that equity never enforces a penalty or a forfeiture. We must not ignore the plain words of the statute, which is that equity will not enforce a penalty or a forfeiture in any case. Comp. Laws 1913, § 7188. The plaintiff has no right to claim a forfeiture. He has received about one-third of the purchase price of the land. His position is that of a mortgagee. He holds the legal title of the land only as security for the balance of the purchase money. His remedy is that of a mortgagee, to obtain a decree of foreclosure and sale of the land for the sum due, subject to redemption as provided by statute.