Opinion of the Court-Budge, J.

appellant's liability to pay said amount to respondent can be based. The answer merely contains a statement that the respondent in making the alleged tender of $331.99 deducted $55.86, which he designates as a rebate allowed by the Idaho Irrigation Company. The answer fails to allege that said rebate belonged to respondent; and there is no provision in the written agreement to the effect that any rebate allowed, or that might be allowed, to appellant should be deducted from any of the payments stipulated in the written agreement, or that said rebate should belong to respondent. In other words, there is no issue tendered upon this subject; and it in nowise grew out of, or was germane to, any of the terms or conditions contained in the written agreement. This item, as well as the other two mentioned, was subject to an independent action, and could not be set up as an offset, counterclaim or credit against the amount agreed to be paid on the first day of January, 1914.

We are of the opinion that the demurrer to the amended answer should have been sustained so far as the above items were concerned, and that the court erred in admitting evidence in support of them. At best, these items, however they may be designated, under the pleadings in this case, can be considered in no other light, even admitting that appellant was liable, than as independent agreements, for a breach of which respondent could maintain an independent action.

This, it will be remembered, is a summary proceeding brought under the statute for the express purpose of recovering possession of real estate upon a breach of specific conditions contained in a written contract, which contract may be terminated upon proof of a breach of any of its terms or conditions. If, in a proceeding of this nature, breaches of subsequent independent agreements were permitted to be pleaded as a defense or justification of a breach of such a contract, an owner of premises could be deprived of their use and possession, of the rents and profits accruing therefrom, and of the payments to be made under the contract, pending the ultimate determination of the breaches of such subsequent and independent agreements. This we do not think was the

Opinion of the Court-Budge, J.

purpose of the statutes governing summary proceedings in actions of unlawful detainer.

The written agreement involved in this case provides that "Time is agreed to be the essence of this contract and in case of default in any deferred payment as above set forth, the said party of the second part shall forfeit any rights he may have to said premises . and he shall surrender possession of said land and improvements thereon, if any, to said party of the first part." The answer admits a failure to pay the first deferred payment on January 1, 1914, of $500 and interest, and sets up as a justification therefor separate and distinct agreements from the one which is the subject of this action. These separate agreements, if enforceable, and any damages flowing from a breach thereof, would be the subject of an independent action, for which the respondent should be confined to a separate action at law. (Hunter v. Porter, 10 Ida. 72, 77 Pac. 434; Carmack v. Drum, 27 Wash. 382, 67 Pac. 808.)

The written agreement provides, among other things, that respondent is to pay all taxes for the year 1913, and that "should he fail, refuse or neglect to pay the same, the party of the first part [appellant] may pay them and add the amount so paid to the amount due on this contract and it shall, when so paid, become a part of the purchase price of said real estate." The complaint alleges the failure on the part of respondent to pay the taxes for 1913 and the payment of them by appellant. Respondent, in his amended answer, admits that he did not pay the taxes as stipulated in his written contract, but attempts to justify not on the ground that in case of his failure to pay them they should be paid by appellant and added to the purchase price of the real estate, but for the reason that appellant did not have the authority on January 3, 1914, when the taxes became due, to sell or dispose of the premises described in the written agreement, because she had not received such authority from the probate court of Lincoln county. Under the terms of the written contract, a plea of this character constitutes no defense to this action. The contract expressly provided that appellant was under no

Opinion of the Court-Budge, J.

obligation to convey the premises until the purchase money had been paid in full, together with all of the taxes, etc. The lack of authority to convey was no excuse for respondent's failure to perform strictly the provisions of the contract on his part to be performed. (Rischar v. Shields, 26 Ida. 616, 145 Pac. 294.) A would-be purchaser in possession of land under an executory contract for the purchase of the same is estopped from denying his vendor's title. (Page v. Bradford-Kennedy, 19 Ida. 685, Ann. Cas. 1912C, 402, 115 Pac. 694.)

When the contract was entered into respondent was aware that appellant was acting in her representative capacity, and he had knowledge of the fact that the estate was in course of probate. The contract was breached in this respect, prior to the notice to surrender the premises, and no tender was made to appellant of the amount of taxes and interest before the commencement of the action of unlawful detainer in the probate court, or afterward in the district court.

Respondent insists that he was entitled to deduct the three items heretofore discussed from the $500 due on January 1, 1914, and that he deducted said amounts and tendered to appellant the balance, viz., $331.99. Without discussing the sufficiency of the tender, we are forced to the conclusion that the terms of the contract which provide that respondent "is to pay interest at the rate of six per cent per annum on all deferred payments, were not complied with. There was no interest on the deferred payment included in the $331.99, the amount alleged to have been tendered to appellant. Therefore there was no proper and legal tender which would relieve respondent of his obligation to pay the $500, with interest on January 1, 1914.

It is alleged in the complaint that the chattel mortgage to be given by respondent to appellant was to secure the first deferred payment as specified in the written agreement and also to secure the payment on the water contract due the Idaho Irrigation Company on April 1, 1914. The amended answer denies that the chattel mortgage was to be given for these purposes. The court found upon this issue: "That the

Opinion of the Court-Budge, J.

defendant was also to deliver to the plaintiff a certain chattel mortgage upon the personal property then on the premises," but failed to find whether this chattel mortgage was to be given to secure the first deferred payment and the payment on the water contract. However, we think that the evidence establishes the fact that it was clearly the intention of the parties that the chattel mortgage was for these purposes.

Respondent admits that he was to give the chattel mortgage, and that he had tendered it to appellant, but that she had refused to accept it. The chattel mortgage is here as an exhibit in the case, and it appears to have been neither signed nor acknowledged by respondent and his wife; nor does it contain a description of the personal property enumerated in the bill of sale which it was to cover. And it is in fact not a chattel mortgage, but simply in effect a blank form.

The five promissory notes for $1,000 each, mentioned in the written contract, which were to be executed by respondent. and his wife, are not found among the exhibits. But it appears from the record that they were not executed. Interest coupons are found among the exhibits, but they are not signed. A letter written by Mr. Brush fully explains the possession of these documents by appellant. This letter indicates that the chattel mortgage and the notes, in the condition above mentioned, were forwarded by Mr. Brush to appellant for the sole purpose of securing his commission-he was acting as agent of the appellant in this transaction-and were not sent to her for the purpose, as contended by respondent, of inspection and approval. They were not in proper legal form at the time they were sent to appellant or when they were tendered into court, and appellant would, under no circumstances, be required to accept unsigned notes or an unsigned and unacknowledged chattel mortgage.

The finding of the court that respondent had made an offer to execute and deliver notes and mortgage in accordance with the contract which appellant refused to accept is not supported by the evidence. It was not a question of an offer to execute and deliver, but rather, had respondent under the terms of his contract, executed and delivered or tendered the

Opinion of the Court-Budge, J.

notes and mortgage prior to the time appellant declared a forfeiture? It is clear from the testimony that he had not.

Adverting to the payment on the water contract which the chattel mortgage was to secure, the written agreement stipulated that respondent was to make this payment of principal and interest to the Idaho Irrigation Company on April 1, 1914. This he failed to do, and thereby breached his written contract in another particular.

The trial court failed to make any finding of the right to the possession of respondent or appellant of the personal property, but in its judgment decrees the possession of the personal property to the respondent, basing its judgment, no doubt, upon the theory that the terms of the written contract had been fully complied with and that there was no breach. The evidence fails to sustain the judgment of the court in awarding the possession of the personal property or the right to the possession of the real estate to respondent. The sale of the personal property to the respondent was conditional, the title to remain in the appellant until the terms of the contract were complied with. And the enjoyment of the right to the possession of the personal property by respondent depended upon his strict compliance with each and all of the terms of the written contract.

The evidence, to our minds, establishes a breach of the written contract in the following respects:

(1) The failure of respondent to make the first deferred payment of $500, with interest on January 1, 1914; (2) his failure to pay the taxes for 1913; (3) his failure to make the payment to the Idaho Irrigation Company of principal and interest on the water contract, due April 1, 1914; (4) and his failure to execute and deliver or tender the chattel mortgage to appellant to secure the first deferred payment and the payment on the water contract, and to execute and deliver to appellant the five promissory notes for the balance of the purchase price of the real estate.

The evidence fails to support the findings of the court; and the findings do not support the judgments.