Allen

dissenting.—I dissent, but upon a different ground from that stated by Justice Henshaw. As to the construction of the contract, I concur in the views of the majority, but I do not think that the breach of this particular kind of a contract of sale gives the vendor the right to go into equity to claim specific performance, or to foreclose the right of the purchaser. In ordinary contracts for the sale of land the vendor has the right either to rescind or to foreclose for failure of the vendee to make deferred payments, because in ordinary contracts of sale the vendor is able to perform the contract on his part by making a conveyance. But when, as in this case, the vendor is not ready to convey, and may never be able to do so, I think he should be limited to rescission or to his action to recover the installments due, and that he has no right to claim the relief awarded by this judgment.

Rehearing denied.

This is an appeal from the judgment upon the judgment-roll.

The action is to compel the payment of moneys alleged to be due under contracts for the purchase of lands, and, in default of payment, to foreclose defendant’s rights under the contracts, and for general relief. The action is on more than one contract, but they are alike in terms, and one will serve as a • type of all. Plaintiff agreed to sell, and defendant to buy, a certain piece of land. At the date of the contract defendant paid one-fifth of the purchase price and one year’s interest upon the unpaid portion, and agreed to pay the same interest annually in advance until the completion of the purchase, or the termination of the contract, together with all taxes and assessments levied upon the land, and to pay the remainder of the purchase price “on or before the first day of February, 1893.” Defendant is given the right of immediate possession of the land, and upon the performance of all the conditions of *459 his contract is to receive a deed for the land, which deed plaintiff agrees to make upon denland, “after the receipt of a patent therefor from the United States.” The contract proceeds: “It is further agreed…

dissenting.—I dissent, under the conviction that the interpretation given to this contract in the opinion rendered by Department Two is proper and sound. It was there said (Southern Pacific R. R. Co. v. Allen, 40 Pac. Rep. 752 ): “Plaintiff agreed to sell, and defendant to buy, a certain piece of land. At the date of the contract defendant paid one-fifth of the purchase price and one year’s interest upon the unpaid portion, and agreed to pay the same interest annually in advance until the completion of the purchase or the termination of the contract. The time of payment for the unpaid part of the purchase price was ‘on or before the first day of February, 1893’; that is to say, ■within five years from the execution of the contract. Upon performance by defendant of the conditions of his contract he was entitled: 1. To take and hold possession of the land; and 2. To receive a deed for the same upon demand, and after payment of the remaining four-fifths of the purchase price, which deed plaintiff agreed to make ‘after the receipt of a patent therefor from the United States.’ The contract proceeds: ‘It is further agreed between the parties hereto that the party of the first part…