Appeal from Seventh Judicial District Court, Mineral County; Peter J. Somers, Judge.
Frank Thunen and W. M. Singer, for Appellant.
John R. Melrose and Mack & Green, for Respondents.
By the Court, McCarran, J.:
This action was brought in the court below to obtain judgment in favor of the plaintiff, appellant herein, against defendants, respondents herein, for the sum of $750, being an unpaid balance, principal on a certain agreement made between appellant and respondents. The agreement, which furnished the basis for the action is as follows:
This agreement, made the 15th day of March, A. D. 1907, between Southern Pacific Company, a corporation created and existing under laws of the State of Kentucky, first party, and C. N. Miller, George F. Thompson, and A. E. Bettles, of the County of Esmeralda, State of Nevada, second parties, witnesseth that for the sum of one thousand ($1,000.00) dollars, lawful money of the United States, to be paid at the times and in the manner and upon the terms and conditions hereinafter set forth, first party agrees to sell to second parties, and second parties agree to purchase from first party, all that certain lot, piece, or parcel of land situate in the town of Mina, county of Esmeralda, State of Nevada, particularly described as follows, to wit: Lot six (6) in block ten (10), as shown and delineated upon the map of said town filed by first party in the office of the county recorder of said county of Esmeralda, on the 18th day of September, 1905, and recorded in Book of Surveys at page 2, records of said county, to which reference is hereby made for further description.
Second parties have paid to first party the sum of two hundred and fifty ($250.00) dollars, and agree to pay the balance of said purchase price, to wit, the sum of seven hundred and fifty ($750.00) dollars, in installments as
follows, to wit: Three hundred and seventy-five ($375.00) dollars on or before one year after date; three hundred and seventy-five ($375.00) dollars on or before two years after datetogether with interest on the unpaid principal from date until paid, at the rate of 6 per cent per annum, payable annually, and second parties shall also pay all taxes and assessments of every kind and nature which may prior to full payment of all said installments of said principal and interest thereon be assessed, levied, or imposed upon the premises afore described or any part thereof.
And upon full payment of said installments of said purchase price and accrued interest thereon, and all taxes and assessments upon said premises, as aforesaid, first party covenants and agrees to convey said premises to second parties by good and sufficient deed of grant, bargain, and sale, free and clear of all liens and encumbrances made, done, or suffered by it.
And it is agreed that time, wherever mentioned herein, is an essence of this agreement, and that if the parties of the second part fail to pay any sum herein agreed to be paid for interest or taxes at the time, place, and as agreed to be paid, that all sums herein agreed to be paid, including the amount owing for unpaid purchase price, shall thereupon, at the option of the party of the first part, become immediately due and payable, and the party of the first part, its successors or assigns, may sue for and recover the sum or sums so due for interest, for taxes, or for both, by personal action for the same as money due and owing; or the party of the first part, its successors or assigns, may at its or their option sue for and recover all sums due and unpaid, including the unpaid purchase price, by action in foreclosure of this agreement, or by personal action against the parties of the second part, as for moneys due and owing, and that either or any of such suits may be brought without any tender, demand or notice whatever from the party of the first part, and that the party of the first part may levy upon any money or other property of the parties of the second part to recover
the amount of judgment obtained, and may,but need not, first resort to the right or property vested in the parties of the second part by these presents.
It is further understood that, subject to this agreement, and during the continuance thereof, second parties shall have the right to take possession of, ...