13 S.D. 343 | S.D. | 1900
It appears from the record presented by this appeal from a judgment enforcing a contract to sell real property that prior to the exedution of the contract in suit one of identical import existed between appellant and Fred B-rakhage, the husband of respondent, covering the same premises. Subsequent to the date of the first contract, and while the husband, with his family, was occupying the land by virtue thereof, he built a dwelling house thereon at an expense of $1,350, which was destroyed by fire about five months after respondent had, by the contract made a basis of this action, assumed the former liability of her husband, and succeeded to all his rights thereunder. The consideration agreed upon for the land and mentioned in each contract being $1,250, no part of which had been paid, respondent, before the commencement of this suit, and when she demanded a deed, tendered to appellant the entire amount due, less $800, which-he had collected as insurance effected in his name upon the house soon after its completion, and before the execution of respondent’s contract. It appears from the evidence offered in support of the complaint that Fred Brakhage, the husband of respondent, made application for the insurance at the instance of appellant, who advanced the premium of $15 as a loan; and, the legal title being in him, the policy of insurance issued in his name, but was subsequently paid for in full with a load of flax delivered to appellant by respondent for that purpose. Under his contract for a conveyance Fred Brakhage was the equi table owner of the land when the expense of building the house was incurred, without any contribution thereto by appellant; and by the mutual agreement of all the parties, respondent, who was at all times in actual possession, with her husband, succeeded him by sub