testimony is that he insisted upon a conveyance to Miss Forgeus as a condition precedent to the payment of the money. Manifestly, appellant was under no obligation to give heed to that proposal. Her duty was to convey to plaintiffs upon their payment or unconditional offer of payment of said sum.

Moreover, under section 1495 of the Civil Code, "an offer of performance is of no effect if the person making it is not able and willing to perform according to the offer." [3] It clearly appears from the testimony of the witness that he could not and would not pay over the money until he got the deed for Miss Forgeus. Hence he had neither the ability nor willingness to make the payment in accordance with the contract of the parties herein. The fact is that the witness was acting for Miss Forgeus, and his chief concern was to secure for her the conveyance of the property.

Under the circumstances, whatever offer or promise was made by Mr. Stovall did not put appellant in default. At least it involved a condition which he had no right to impose. But if it could be said that an offer to pay the money if appellant would execute a deed might be regarded as satisfying the requirements of the contract and that Mr. Stovall disregarded his instructions and made such offer, the promise was futile because of his inability to perform. (Doak v. Bruson, 152 Cal. 17 [91 Pac. 1001]; Allen v. Chatfield, 172 Cal. 60 [156 Pac. 47].)

It is to be observed that the complaint of plaintiffs does not allege a tender of the money on said October 1st, but that they "deposited said sum of $3,000, together with the interest due on the unpaid portion of said purchase price from October 1, 1919, to October 1, 1920, in the Bank of Williams to the credit of said defendant, and that plaintiffs were ready and willing on said first day of October, 1920, to execute and deliver to said defendant the said mortgage and promissory note, but the defendant refused to meet with said plaintiffs for the purpose of accepting said note and mortgage and to convey said property.

"That immediately upon the deposit of said money said defendant was notified to come and take it, and was notified that said plaintiffs were ready and willing to execute and deliver said promissory note and mortgage, but defendant

refused to accept said money or said promissory note and mortgage and refused to execute and deliver said deed, and defendant willfully concealed herself so that plaintiffs could not demand said conveyance." As we read the record, all these allegations are unsupported by the evidence. They did not deposit the money to the credit of appellant; they were not able and willing to execute the note and mortgage, since they had not made nor suitably offered to make the payment, which was a precedent condition to the execution of said instruments, and we find no evidence that defendant refused to meet with plaintiffs for said purpose, to accept the money or to execute the deed as required by the contract.

We may add in this connection that particular emphasis is placed upon the circumstance that appellant on said October 1st went to the city of Colusa, and it is claimed that this was for the purpose of concealing herself. The proof to the contrary is that she presented herself at the bank in Williams in the forenoon and thus afforded respondents an opportunity to make the payment and demand the conveyance, and the uncontradicted testimony of U. W. Brown, Esq., her attorney, who testified that she came to his office in Colusa about 2 o'clock in the afternoon of that day; that Troughton called Mr. Brown by telephone shortly after 2 o'clock and said he was going to Colusa, and the latter informed him that Mrs. Eakle was then in his office and Troughton said he was coming over "to prepare and execute the papers"; that Mr. Brown went to work preparing the deed and mortgage, deed from Mrs. Eakle to Troughton and the mortgage from Troughton and his wife to Mrs. Eakle, and Troughton said he would be right over. Mrs. Eakle then came to Mr. Brown's office several times to know if Troughton had come, and the last time she was there was about 5 o'clock, and she said she was obliged to return to Williams by 6 o'clock. On Mr. Troughton's arrival there Mr. Brown asked him why he had been so long in reaching Colusa, and he said he was trying to get into communication with his wife in Woodland. Mr. Brown's veracity is unimpeached and his testimony is not disputed, and that there was anything surreptitious or sinister in the conduct of appellant is entirely inconsistent with his statements on the witness-stand.

Any payment or offer of payment on the part of plaintiffs would have been excused, of course, on principle, as well as by authority of subdivision 1 of section 1511 of the Civil Code, if appellant had concealed herself or had refused an unconditional offer of the money, but we find no such situation. We regard the only reasonable inference from the testimony to be that appellant went to Colusa for the purpose of consulting her attorney as to how she might protect her own interest and also be prepared to carry out her contract if plaintiffs met the situation, but that respondents failed to perform or offer to perform the primary obligation resting upon them, and hence appellant was not called upon to take any affirmative action.

It may be, as suggested by respondents, that if she had accepted the conditional offer, she would have received the money and the note and mortgage would have been executed, but she had the legal right to stand upon her contract and to insist that respondents comply with its terms.

It may be added that respondents rely also upon what occurred the following day set forth in the complaint as follows: "That on the second day of October, 1920, plaintiffs demanded of defendant the conveyance of said property and again tendered to defendant, the sum of $3,000 together with the interest due on the unpaid portion of said purchase price from October 1, 1919, to October 1, 1920, and were ready and willing and offered to the defendant, to make and execute the note and mortgage agreed on in said agreement, and to deliver the same to the defendant, and to do and perform all of their agreements under the said agreement upon the like performance by the defendant and have duly performed all the conditions of said agreement on their part." [4] But as we have seen, time was made of the essence of the contract and the payment was to be made not later than October 1st. If any forfeiture occurred it was complete on that date and it could not be undone by any act of respondents on a later date.

Besides, it appears from the record that the offer was made on October 2d on the express condition that she would execute a deed to Troughton and the latter to Miss Forgeus before appellant should receive the money.

In

deed, it is admitted by respondents that "plaintiffs were able only to pay this money to defendant upon condition that she execute her deed." Such was not the engagement of the parties, and there is no question of their right to make the unconditional payment an essential prerequisite to entitle plaintiffs to demand a deed.

[5] It is true that the law looks with disfavor upon forfeitures and has declared that "a condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created" (sec. 1442, Civ. Code), but this does not mean that the courts may make for the parties a different contract from what they have agreed upon or resort to a strained and unnatural construction to defeat or nullify their clearly expressed purpose or intention.

But respondents urge that it "would be manifestly unjust for defendant to be permitted to keep the purchase price paid on the ground of a forfeiture," and appellant rejoins that it would be iniquitous "for plaintiffs to use defendant's land two years, and take the crops therefrom for their own use, without paying a nickel's rental or consideration therefor."

[6] At any rate, the courts are ready upon the slightest equitable consideration to relieve parties, upon such terms as may be just, from the results of a forfeiture. The principle is embodied in section 3275 of the Civil Code as follows: "Whenever, by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty."

We see no reason why such relief might not be had in the present case as it does not fall within the exception. The plaintiffs made an effort to comply with their obligation, but, acting probably without legal advice, their effort was ineffective. Their complaint was framed, as we have seen, upon a different theory and it would be necessary to have it amended to justify the relief that we have suggested. We perceive no valid objection to such procedure and if that course be taken, the court can allow whatever is just and equitable in view of all the circumstances.

(McDonald v. Kingsbury, 16 Cal. App. 244 [116 Pac. 380].)

We think the judgment should be reversed, and it is so ordered.

Hart, J., and Finch, P. J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 17, 1922.

All the Justices present concurred.

Richards, J., pro tem., and Myers, J., pro tem., were acting.

[Civ. No. 3899. Second Appellate District, Division One.-June 19, 1922.]

ELON G. GALUSHA, Appellant, v. CORA D. MESERVE et al., Respondents.

[1] TRUST DEEDS-NOTICE OF SALE-SUFFICIENCY OF PUblication.—Where a trust deed provides that notice of sale thereunder shall be published "at least once a week for eight consecutive weeks," that provision is complied with by the publication of notice at regular weekly intervals and the holding of the sale after the elapse of fifty-six days, excluding the day of sale but including the day of first publication.

[2] ID. CORPORATION AS TRUSTEE - ACTION THROUGH DIRECTORS. Where corporate action through the board of directors is necessary to authorize the sale under a deed of trust in which the corporation is named as trustee, in an action to set aside a sale by such trustee, such corporate action may be implied by the recitals contained in the original notice and the corporate seal affixed thereto. [3] ID.-POSTPONEMENT OF SALE BY CORPORATE OFFICER.-The postponement of the sale under a deed of trust, in which a corporation is trustee, is a routine matter appropriately conducted by the officer of the corporation through whom the sale is made. [4] ID.-DEFAULT REQUEST BY DEBTOR FOR EXTENSION OBLIGATION TO POSTPONE SALE. The creditor having become entitled to enforce payment of the note which the deed of trust was given to