151 N.W. 47 | S.D. | 1915
Plaintiff and defendant entered into a contract, 'whereby plaintiff agreed to sell to defendant, and defendant 'agreed to purchase, two certain, quarter sections of land in Jerauld county, S. IX This contract was entered into in April, 3910, and -it .provided that a payment of $250 be made upon its ■execution, a payment of $1,750 on June 1, 1910, and the balance of the purchase price on March 1, 1911; that, -upon such final payment, a warranty deed be given vendee by vendor, and vendor furnish an abstract showing good and merchantable title; that time of the payments was the essence of said contract; and that, in case of failure on the part of the vendee to make the payments at the time specified, the vendor might, at his option, declare the contract terminated and the payments made thereunder forfeited. The first payment was. made at the time of the delivery of the contract. The second .payment was made and accepted June 17, 1910. On March 1, 1911, the vendee was ready, able, and willing to close the deal in accordance with the terms of the contract, and the vendor tendered the deed and abstract to the premises. The deal was not then closed because the vendee contended that the abstract did not show good and! merchantable title. The vendor, while not admitting the soundness of vendee’s contention, proceeded -to cure the claimed defects in such title. The deal then ran on for some three months — each party .professing a desire to close the same, and no attempt being made by either party to terminate the contract — until on, June 21, 1911, the vendee wrote the vendor and demanded the return of the $2,000 upon the ground that the vendor had failed to comply with the terms of the contract. U-pon July 8, 1911, the vendor notified the vendee that, if he did not accept the title as it then appeared, he would proceed to enforce the contract; and- on July 13, 1911, the vendee notified the vendor that his letter of June 21, 1911, was final. Thus -the matter stood when, on July 22, 1911, the vendor notified the vendee that he elected to- and did declare a forfeiture of the payments made, and, upon the same 'day, brought this action, wherein he sought a judgment of the court giving him possession of the premises, decreeing that defendant had no right, title, or interest in said premises, and granting such other and
The judgment and order appealed! from are affirmed.