18 S.D. 80 | S.D. | 1904
Lead Opinion
This action was instituted by the plaintiffs to cancel a certain contract entered into by the plaintiffs, Ralph R. Bowdle and Divid W. Burright, parties of the first part, and Frank S. Jencks, party of the second part, and also to cancel a certain deed of conveyance, and the record thereof, of prop-' erty situated in Charles Mix county, in the state of South Dakota, executed, by the plaintiffs Bowdle and Burright to the said Jencks, and also a certain deed from said Jencks to the defendant John W. Broadwell of the same property, and that the title of the plaintiff Amanda M. Bowdle to the said property be quieted as to the defendants, and each of them, and as to all persons claiming under them. The facts alleged in the complaint may be briefly stated as follows: On the 24th day of May, 1901, the plaintiffs Bowdle and Burright were the owners in fee and in possession of a tract of land in Charles Mix county containing 720 acres. That on that day Bowdle and Burright entered into an agreement in writing with the defendant Jencks by which they agreed to convey to the said Jencks the said' property for the sum of $10,800, and which property said Jencks agreed to. purchase and to pay therefor the said sum as follows: The said Jencks to deed to the parties of the
It will be observed that pending the contract, and before the exchange of the deeds, the hotel property and livery barn which were to be transferred by the defendant to the plaintiffs in part payment for the property were destroyed by fire without the fault of either party. The question presented, therefore, is, which of the parties shall sustain the loss?
It is contended by the appellants that, as the principal portion of the property cpnstituting the consideration to be paid by Jencks for the Charles Mix county property was destroyed by fire, the contract was at an end, for the reason that at the time the buildings were consumed the conditions entitling the defendant to a conveyance of the property had not been performed, in that he had not placed with the bank a deed in escrow for the property, including the furniture, and had not completed his abstract of title, showing the fee-simple title to be in him, and all liens satisfied, except the lien for $600 assumed by Bowdle and Burright, or delivered the same to the cashier of the bank at the time of the fire, and for the further reason that Jencks was in possession of the property at the time it was destroyed by the fire, and for the further
It was also contended by the appellants that the court erred in admitting in evidence the la¡ws and decisions of the state of Iowa relating to the ownership of property held under a contract of sale. The respondents insist that the objection to this evidence is not sufficiently specific to entitle the appellants to avail themselves of the objection in this court, the objection being that the evidence was “incompetent and immaterial.” The rule contended for by the respondents prevails when the objection sought to be interposed to the question may be remedied at the trial if the objection is specifically pointed out. This court has approved and followed the rule
The theory of the appellants is that the contract, although executed in Iowa, had for its subject-matter, in part, at least, the conveyance of real estate situated in' South Dakota, and that as to such property the laws of this state should govern. In Commercial Bank v. Jackson, 7 S. D. 140, 63 N. W. 548, this court held that it is well settled that the law of the sovereignty in which real property is situated governs as to transfers of such property, whether conveyed absolutely or by way of mortgage.
The question now before the court is whether or not the title to the Charles Mix county property passed to the defendant Jencks by the contract, under the evidence in this case, and upon that question this court is at liberty to determine for itself the law applicable thereto. We are of the opinion that-the evidence as to the laws and decisions of the state of Iowa relating to this subject should have been excluded by.the court, but, in the view this court takes of the case, the error is not material.
It is .further contended by appellants that the court erred in admitting the judgment roll in the case of Jencks v. First
Exceptions were taken to a number of the findings of the court on the ground that the evidence was insufficient to sustain the same, and the conclusions drawn therefrom. The respondents insist that the specification that the particular findings were not supported by the evidence is insufficient, in that they do not comply with the provisions of the Code requiring a specification of the “particulars in which such evi
The court finds, in its finding No. 8, that on or about the 5th day of June, 1901, said Jencks and wife executed to' the plaintiffs Bowdle and Burright a warranty deed and an invoice of the personal property agreed upon under the said contract to be transferred by Jencks to the plaintiffs, 3,nd deposited such papers in the State Bank of Ledyard, and furnished to Bowdle and Burright an abstract of title of said Ledyard real estate. It is contended by the appellants that the evidence does not sustain this finding, in that the evidence fails to show that Jencks did furnish a bill of sale of the personal property, or deliver to the appellants a completed abstract of title. We are of the opinion that the appellants are right in their contention. So far as the evidence discloses, we are unable to find that any bill of sale of the personal property was executed by Jencks and delivered to Bowdle and Burright, or to either of them, or deposited with the bank. Burright, assisted by
The court further finds, by finding No. 4, that upon the execution of the said papers by Jencks, he was ready and willing to surrender the possession of the said lots, hotel, livery barn, and all the property referred to and described, in said contract, and so informed said Burright. This finding is not correct, as he had not, as we have seen, made any conveyance of the personal property, and had not transferred the possession of the real property, to the appellants Bowdle and Burright, and had not as we shall subsequently see, completed his abstract, and deposited the same with the bank. At the time mentioned, Mr. Jencks had not had the abstract of the Charles Mix county property examined and passed upon. Upon this subject Mr. Jencks says: “Mr. Burright and myself, in considering this abstract of title, made no investigation, ex
Appellants further assign as error that the court erred in its findings 5 and 10. Without stopping to give these findings, it is sufficient to say that the court, in substance, finds that Jencks performed all the conditions on his part to be performed prior to the fire. In our opinion, these findings are erroneous, for the reason that it clearly appears from the evidence that Jencks did not execute a bill of sale of the personal property and deposit the same with the bank; that he had not brought the abstract down to date, and removed the objections made to it by Burright, in that the taxes were unpaid until July 12, 1901, three days after the fire; and that the possession of neither the real nor personal property had been delivered to the appellants prior to the fire.
. These conclusions necessitate a reversal of the judgment and order denying a new trial, but as the question as to whether or not the plaintiffs are entitled to recover under the findings as they now stand is discussed by the respective counsel, and will probably arise upon another trial, we have deemed it proper to express our views on that question at this time. Assuming the findings to be correct it clearly appears therefrom that Jencks was in possession of the property, both real and
It is claimed by the respondents that, though Jencks was in possession at the time of the fire, it was by permission of Bowdle and Burright; but the facts do not sustain the contention of the respondents, as at no time prior to the fire did Bowdle and Burright have a right to the possession of the property. Certainly they were not bound to take possession, and could not have safely done so, until the abstract of Jencks was completed, and all the liens and incumbrances upon the property were shown to have been satisfied of record. As before stated, the abstract was completed by the addition of the certificate of the abstracter, and the balance of the taxes upon the property was paid, several days after the fire. Upon the facts as they now appear from the record, we are clearly of the opinion that the conclusions of law and judgment should have been in favor of the plaintiffs.
The judgment of the circuit court and order denying a new trial are reversed, and a new trial is granted.
Concurrence Opinion
concurs merely in the conclusion that the judgment and order of the circuit court should be reversed, and a new trial ordered.