The opinion
Motion for modification of decree and petition for rehearing denied May 13, 1924.
On Petition for Rehearing.
( 225 Pac. 727 .)
Mr. S. S. Johnson and Mr. Webster, for the motion.
Messrs. Botts & Winslow, contra.
BURNETT, J.
The defendants have petitioned for rehearing of this cause and the plaintiffs have moved for a modification of the decree so as to include in the sale to be made for the satisfaction of the amount found due to the plaintiffs, the dairy herd and other personal property mentioned in the pleadings.
It will be recalled that a decree was ordered finding that a certain amount was due to the plaintiffs which they had paid upon the purchase price of the lands and personal property, which was impressed as a lien upon the land in default of the payment of which the land was to be sold for the satisfaction of the money decree; but the personal property was not included in the order of sale.
It is an erroneous conception of counsel for the defendants to impute to the court the holding that the indulgence of the state land board in deferring the payment of the school fund mortgage and of *177 Frank Berns in not requiring’ payment promptly of the interest due on his mortgage on the lands, were waivers. We have not relied upon those nonactions of the board and Frank Berns as waivers affecting the decision of this case. By the terms of the contract, the present plaintiffs were required to assume, or in other words to pay, the school fund mortgage and the Frank Berns mortgage. The former was entirely due and from time to time installments of interest fell due on the latter.
Thus far, both securities were ripe for payment and the holders thereof could be compelled to accept all money due thereon. What is imputed to the present defendants as waiver depends upon the clause making time of the essence of the contract. The defendants having made such a contract, that condition, as pointed out in the former opinion, was as binding upon them as it was upon the plaintiffs herein. It was the business of the defendants to enforce their contract promptly if they would rely upon that feature of it. Their waiver rests in their failure to enforce that clause and does not necessarily depend upon whether they were notified that either of the prior encumbrances had not been discharged. The clause making time the essence of the contract means what it says, is binding upon both parties, and is not to be employed at the mere discretion of the vendor. Unless he uses it according to its terms, his inaction amounts to a waiver of its provisions.
Both parties, say the plaintiffs in their pleadings and the defendants in their brief, avow that the personal property was replevined and turned over to the possession of the defendants. As to personalty, in the absence of statutory regulations like those for the registration of chattel mortgages and the like, a *178 lien depends upon retaining the possession of the chattels. For this reason no lien could be enforced against the personalty after possession thereof had been surrendered by those claiming the lien, the plaintiffs in this instance. The rule is different as to realty and, as we have seen, a purchaser who has paid part of the purchase price becomes pro tanto owner of the land and is entitled to the aid of equity to enforce his claim for reimbursement. Conceding then, without deciding, that the plaintiffs ever had a lien upon the personalty, it has been destroyed by their surrender of it in obedience to the replevin, leaving only the land amenable to the equitable jurisdiction of the court as the subject matter of a lien for the purchase price already paid.
The petition for rehearing and the motion for the modification of the decree are both overruled.
Rehearing Denied and Motion Overruled.
McBride, C. J., and Rand and Coshow, JJ., concur.