Amundson v. Severson
170 N.W. 633
S.D.
1919
Check Treatment
MoCOY, J.

Thеre was judgment for plaintiff, and defendant appeals. . There is no material dispute in relation to the facts. On the 25th-day of Oсtober, 1909, the plaintiff and defendant entered into a written contract in substance providing: That the first party (plaintiff) had this day sold, аnd 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 bеcoming due after that date; *379possession to ibe given second party on March i, 1910. And1 that on March 1, 1911, the said sum of $1,000, due at that timе, having been duly paid, and' this contract otherwise fulfilled by the second party, 'first party shall execute and deliver a good and sufficient warranty deed of said premises, and second' party shall execute and deliver to first party a mortgage upоn the same, securing said balance of $2,200, with interest, and that the first party shall, at' or prior to delivery of deed, furnish second party an abstract showing good and merchantable title in said premises. At the time said contract was entered into, the plaintiff wаs the owner of only an undivided two-ninths interest in said land', the remaining seven-ninths interest being in her children, some of whom were then minors, the said lаnd then belonging to plaintiff and her children as heirs of her deceased husband. The sum of $200 was paid by defendant at the time of the еxecution of the contract, and $8oO' on the first day of March, 1910. On March 1, 1911, defendant paid plaintiff the sum of $500, and by reason ‍‌‌‌​‌‌​‌​‌‌‌​‌‌​‌‌‌‌‌‌‌‌​‌​‌​​‌‌‌​‌​‌​‌​‌​​‌‌‌​‌‍of plaintiff’s not then being the owner of the full title, and being unable to deliver an abstract showing merchantable title in herself, the defendаnt refused to pay the balance of the $1,000 payment due on the 1st day of March, 19.11; defendant made no other payments. Dеfendant went into possession of said land on the 1st day of March, 1910. During 1913 all of said land excepting about 30 acres was washed and' eroded away by the waters of the Missouri river. The 30 acres remaining were of little value. During the early part of the year 1917 thе plaintiff claims to have procured good title to the entire interest in said premises, and' on the 9th day of August, 1917, tendered an аbstract of title and a warranty deed of conveyance to defendant, which defendant refused to receive or аccept. Thereafter the plaintiff instituted suit in eq¡uity against t'he defendant to compel him to specifically perform sаid contract by the payment of the balance of such purchase money, and interest. Finding's and judgment were in favor of plаintiff, and defendant. appeals, assigning various errors.

[1] One of the contentions of appellant is that the plaintiff’s causе .of action at the time of the commencement thereof was barred by the statute of limitations. That action is for spеcific performance on the equity side of the court, and we are inclined *380to the view that the io-year limitation prоvided for 'in actions for relief by section 66, Code of ‍‌‌‌​‌‌​‌​‌‌‌​‌‌​‌‌‌‌‌‌‌‌​‌​‌​​‌‌‌​‌​‌​‌​‌​​‌‌‌​‌‍Civil Procedure, applies to this case, and that therefore the cause of action'was not barred.

[2] The vital contention upon the merits presented by appellant is that the situation рresented in this case is an exception to the general rule that a purchaser of real estate w'ho makes payments and goes into posssession under a contract, such as that herein involved, penciling delivery of deeds and furnishing of аbstract, shall bear any loss resulting from fire, flood, or other cause. It is the contention of appellant that this general rule is not applicable where the vendor does not own the property, and has no ability .to convey prior to or at the time the loss occurs; that under such circumstances a purchaser cannot be held to be an equitable owner оf premises under such a contract where the seller had no title or was not in a position to convey according tо the terms of the contract, and that if such a loss occurs before the seller acquires title, the loss cannot fall upon thе purchaser. We are of the opinion that this contention ‍‌‌‌​‌‌​‌​‌‌‌​‌‌​‌‌‌‌‌‌‌‌​‌​‌​​‌‌‌​‌​‌​‌​‌​​‌‌‌​‌‍of the appellant, under the circumstances of this case, is well taken. The proposition seems to be clearly stated in 39 Cyc. 1642, as follows:

“The general rule, placing the burden' оf 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 shаll 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 nоt 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 plаintiff 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 *381into and was in possession of the premises at the time thе loss occurred would not -change or vary the reason upon which) the exception to the general rule is based. Bеchtel v. Bank, supra. Lilienthal v. Bierkamp, 133 Iowa, 42, 110 N. W. 152.

We are therefore ,of the opinion that under no condition of this case would rеspondent 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 spеcific 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.