LIDDLE v. COOK et al., 209 F. 182

VAN VALKENBURGH, District Judge (after stating the facts as above). From the record we are convinced that while their contract with Liddle was ostensibly to terminate on or about Jyly 1, 1907, nevertheless the Parkers continued as his agents in the sale of these lands to whomsoever desired to purchase them. Some of them were resold as many as three or four times. The testimony of appellees, is corroborated by that of other witnesses and is sustained by the facts and circumstances surrounding the entire transaction.

It appears in testimony that the agency and authority of the Parkers was repeatedly admitted, not only by them, but by Liddle himself. While B. D. Parker denies this agency, and claims, in contracting with Cook, to have been acting for Detmer and the Sporls, he does not deny the truth of the statements made in his letter, nor does he substantially contradict the testimony of other witnesses. From such testimony it appears that in August, 1908, B. D. Parker stated: •‘That they had taken the (Cook) matter up with Mr. Liddle, and Mr.

Liddle said just as soon as he had time he would execute the deed and that they would then notify the Cook boys that thefr deeds were ready and they could make the final payment. Mr. Parker said Mr. Liddle, told him that he was too busy just at that time to execute the deeds, that he had so much to do, but he would do it at his earliest opportunity. Mr. Parker said that they represented Mr.

Liddle in the sale of all of his land, that they did all of his business for him in that regard, and this matter would be attended to as soon as it could be reached.” That after the forfeiture Parker said: “That they were never more surprised in their lives when they heard that Liddle had declared a forfeiture of this contract; that it was an outrage and that it would never hold, as he had agreed to notify us when he was ready to take up this matter and furnish abstract and deed; that they were satisfied now that his delay was simply for the purpose of being able to claim a forfeiture, as he had done the same thing in other eases.” It further appears that the land was increasing in value, and that Liddle declared it to be his purpose to insist upon the forfeiture, and to “get some easy money.” As a witness in his own behalf, Liddle does deny the agency, all privity between himself and appellees, and all knowledge of the representations made by the Parkers.

However, the issues of fact were resolved against him "by the chancellor, upon substantial evidence ample to sustain the finding. The testimony of Liddle and Parker fails to satisfy or convince; both are evasive and betray an unworthy indifference and want of moral responsibility. Appellees seek to establish no naked legal right; they were frank, sincere, and honest from the outset; they knew that they were buying at an advanced price; they have never sought to obtain anything fox* less than its value; they are still willing to pay in full all that they contracted and agreed to pay.

In view of the size of the enterprise, they advanced a large amount of money, which will be wholly lost to them if this forfeiture should be upheld. On the other hand, appellant is getting in full all that he contracted to receive. It would be unconscionable, under the circumstances of this case, to permit him to profit at such serious disadvantage to the appellees. It is urged that while equity will not ordinarily enforce a forfeiture, this is a suit to quiet title, and in such a suit contractual rights will be enforced, even though- the effect be indirectly to 'enforce a forfeiture.

The same argument was made in Brewster v. Lanyon Zinc Co., 140 Fed. 801, 72 C. C. A. 213; but this court, speaking through Judge (now Justice) Van Devanter, held: “It has been said of a suit like this that it is not one to aid in the enforcement of a forfeiture. Harper v. Tidholm [155 Ill. 370], 40 N. E. 575; Mott v. Danville Seminary [129 Ill. 403], 21 N. E. 927; Pendill v. Union Mining Co, [64 Mich. 172], 31 N. W. 100. But we think it is essentially of that character. Its primary and only purpose is to establish a forfeiture as matter of record and to obtain the cancellation of the thing forfeited.

This constitutes enforcement in the only sense in which that term is applicable to a forfeiture, which is that of giving effect to it after its incurrence, just as a statute is enforced after its enactment.” The rule was there announced that because forfeitures are usually harsh and oppressive, and because they can ordinarily be enforced at law, courts of equity generally refuse to aid in their enforcement.; Nevertheless, that in cases otherwise properly cognizable in equity, there is no insuperable objection to the enforcement of a forfeiture when that is more consonant with the principles of right, justice, and morality than to withhold equitable relief.

Under this rule, the complainant will be entitled to relief only in the event that the case made upon the hearing, shall be one the equity of which is strong enough to overcome the general indisposition of courts of chancery toward aiding in the enforcement of forfeitures. We do not think the appellant has sustained the burden thus cast upon him. Equity, having acquired jurisdiction of the entire matter under the pleadings, may grant such relief as may be consonant with principles of right and justice, and to that end we think the decree below should be affirmed. It is so ordered.