170 N.W. 633 | S.D. | 1919
There was judgment for plaintiff, and defendant appeals. . There is no material dispute in relation to the facts. On the 25th-day of October, 1909, the plaintiff and defendant entered into a written contract in substance providing: That the first party (plaintiff) had this day sold, and the second party (defendant) has bought the following described premises, containing 120 acres, on the following terms, to-wit: $200 in cash; $800 on March 1, 1910; $1,000 March 1, 1911; balance of $2,200 on or before two years from March 1, 1911, with interest at 6 per cent/ from March 1, 1910, on all sums becoming due after that date;
“The general rule, placing the burden' of a loss or injury upon the purchaser, is based upon the ground of his equitable ownership, and cannot be extended beyond the reason of the rule, and it is therefore essential to its operation that the contract at the time of the loss or injury shall be so complete, binding, and enforceable that the purchaser may-properly be regarded as the owner of the property. It is accordingly held that the burden must fall upon the vendor if at the time the loss or injury occurs the contract is not complete and binding, * * * as where at the time of the loss or injury the vendor is not in a position to convey a good title.”
Such was the holding of this court in Bechtel v. Bank, 35 S. D. 191, 151 N. W. 887. It is clear from the recond in this case that at the time of the loss of the land by the action of the Missouri x-iver plaintiff was not, and never had been-, .in a position to convey good title to defendant. The fault was wholly on the part of plaintiff for the contract not having been fulfilled and carried out by either of the parties to the contract, thereby placing this case clearly within the exception to the genei'al rule.
We are also of the view that the fact that -defendant went
We are therefore ,of the opinion that under no condition of this case would respondent be entited to a judgment for specific performance. We áre also of the view that the record clearly shows that respondent failed to show such a good title as was sufficient to authorize the court to decree specific performance of the contract on the part of appellant.
The judgment and' order appealed from are reversed, and the cause remanded, with directions to the lower court to enter judgment dismissing respondent’s cause of action on the merits.