Alexander

The defendant W. A. Jackson, in the year 1884, purchased from Charles Crocker the property described in the complaint, for the sum of $150, paying a portion of the price, and taking from him an agreement for a conveyance upon the payment of the remainder in two equal payments within six and twelve months thereafter. In September of that year Jackson erected a dwelling-house and made other improvements upon the land, at a cost of about thirteen hundred dollars, and upon the completion of the house, the defendants, with their children, moved into the house, and have since occupied it as their home. The money paid for the purchase of the lots and the construction of the dwelling-house was the community property of the defendants, and on August 12, 1885, the defendant Mary duly executed and acknowledged a proper declaration of homestead upon said land and dwelling-house, and on the same day filed it for record in the office of the county recorder of said county. Jackson made a further payment on account of his purchase from Crocker, in October, 1885, and took from him a new agreement providing for the payment of the remainder in thirty days; and on February 8,1886, he paid a still…

By the conveyance from Crocker, the plaintiff became vested with the legal title, and the right, as grantee of Crocker, to enforce the contract made between Crocker and Jackson. After the conveyance he stood in the same position Crocker would have held if no conveyance had been made. (Dwight v. Phillips, 48 Barb. 118 ; Civ. Code, secs. 1083, 1084.) Crocker could not have declared a forfeiture without giving defendants an opportunity to pay the balance, and thus avoid the. forfeiture provided for in the agreement. He never had claimed a forfeiture by reason of a failure to make payments at the times required by the contract, and a court of equity ought not to allow a forfeiture without a reasonable notice to defendants that a forfeiture would be declared unless payment was made.

Plaintiff paid Crocker and received his deed on October 15,1887. On November 3,1887, plaintiff paid Jackson $335.20, gave him his promissory notes for $1,000, secured by mortgage on the premises, and on the following day he demanded possession of the land; but defendants refused, and ever since have refused, to deliver the same, and no offer has ever been made by defendants, or either of them, to pay…