171 N.W. 823 | N.D. | 1919
On October 18, 1915, the Citizens State Bank of Sykeston entered into a written contract with one John Boss, whereby it sold and agreed to convey unto him, or his assigns, an 80 acre tract of land in Wells county, upon the performance by said Boss of his part of the agreement. Boss agreed to pay $1,600 for the land, viz., $300 in cash, and $1,300 on demand, with 7 per cent interest from, the date of the contract. The contract also contained this stipulation'. <£It is agreed and understood that as soon as party of the second part puts up buildings on above-described premises that party, of the first part will deliver warranty deed and take back a first mortgage for an amount said party of the first part can place on the same and a second mortgage for the balance, to be paid in five annual instalments.” It is conceded that John Boss paid the $300 cash payment stipulated in the contract. He also testifies that no demand was ever made upon him for the payment of the $1,300, and that the cashier of the vendor bank stated that they would rather have the money continue to earn interest. The cashier, however, denied this. It is undisputed that John Boss afterwards assigned the contract to the plaintiff by written assignment dated November 1, 1916. It is also undisputed that the vendor, the Citizens State Bank of Sykeston, on November 3d, 1916, conveyed the premises to the defendant Augusta Ealk by warranty deed. It is conceded that the defendant had full knowledge of the outstanding contract to John Boss. The defendant admitted that she at no time caused any demand to be made upon John Boss for the payment of the balance due on the purchase price. She did, however, institute proceedings to
So far as tbe ultimate rights of tbe parties are concerned, tbe important and controlling question in tbe case is whether tbe contract for deed has been- canceled. If it has, then of course tbe plaintiff has no standing whatever. But if it has not been canceled then the contract is binding upon tbe parties to this litigation, and tbe plaintiff is entitled to a conveyance of the premises upon complying with tbe terms of tbe contract.
Tbe only default specified in tbe notice of cancelation worthy of notice is tbe one relating to tbe failure to pay tbe balance due on tbe purchase price. The alleged default in failing to construct buildings is, in our opinion, of no consequence. The stipulation with regard to tbe construction of buildings has already been set out in full. It speaks for itself. It merely provides that when such buildings are constructed tbe vendor will give to tbe vendee a warranty deed and take back certain mortgages for tbe balance due on tbe purchase price. Under tbe
Under the statute relating to the foreclosure of land contracts, notice of cancelation thereof must be served “upon the vendee or purchaser, or his assigns.” Comp. Laws 1913, § 8120. The word “assigns” as used in the statute includes an assignee of the purchaser. Williams v. Corey, 21 N. D. 509, 31 N. W. 457, Ann. Cas. 1913B, 731. And where the vendor has knowledge or notice of the fact that the vendee in a land contract has assigned his interest therein to some other person, it is incumbent upon the vendor to serve notice of cancelation upon such other person. Ibid.
It will be noticed that the notice of cancelation in the case at bar was addressed “to John Boss and to whom it may concern.” The very form of the notice indicates that the defendant supposed that someone besides Boss was, or might be, interested in the matter. When the notice was served on Boss he informed the agent of the defendant who served it that the plaintiff was his assignee and as such properly entitled to be served with notice, and yet no such service was made. We do not believe that under these circumstances the defendant is in a position to insist that the contract has been canceled. At all events the decision of the trial court is just. The defendant Augusta Balk will receive the full amount of the purchase price and interest stipulated for in the contract. We are of the opinion that the judgment should be affirmed, with the further provision that the plaintiff shall pay to the defendant Augusta Balk any taxes which she may have paid upon the premises, with legal interest thereon. Neither party will recover costs on this appeal.