15 S.D. 242 | S.D. | 1901
This was an action to recover the possession of a tract of land, damages for its detention, and the value'of the use
The appellant assigns as error (i) that the complaint does not state a cause of action, for the reason that there is no allegation that the land in controversy is in Lawrence county, or even in the state of South Dakota, and that the judgment is therefore void for want of jurisdiction in the court; (2) the plaintiff alleges ownership of the land, but the court failed to find that' he was such owner; (3) that the court having found the title of the property to be in the United States, and not in the plaintiff, it was error to enter judgment for the plaintiff; ^4) that inasmuch as the defendant had entered upon the premises under a contract, had purchased the same, and paid a part of the purchase price, and made improvements upon the property, the court had no right to declare the contract forfeited, and subject defendant to the loss of the amount he had paid under the contract, and the loss of the improvements made on the property. The action was based upon a contract ■ made between the plaintiff Coleman, and the defendant, by which Coleman agreed to sell to the defendant the premises described upon the payment of $600; $100 of it to be paid in September, 1895; $250, September, 1896; $250, September, 1897; making in all $600. It is alleged in the complaint that the defendant had failed and neglected to pay the amount agreed upon, and had only paid $276, the last payment being made in December, 1898; that before the commencement of this action the plaintiff demanded possession of the premises; and that defendant refused to surrender the same. Plaintiff further alleged that he was the owner and entitled to immediate possession of the premises be
The court found that the plaintiff was not owner in fee, but, in effect, that he was in the actual prior possession thereof at the time he executed the contract, and was entitled to the possession at the time the action was commenced. Actual prior possession by a party
The court, in its findings, found that the defendant had made certain improvements on the property, but also finds that the value of the use and occupation of the same was $15 per month, and was greater than the value of the improvements and the amount that had been paid on the contract by the defendant. We are of the opinion that the court committed no error in so finding. This court held in Seymour v. Cleveland, 9 S. D. 94, 68 N. W. 171, that a party holding property under a contract for its purchase is not entitled to claim the value of improvements made by him while in possession of the property, as he does not hold under color of title, within the meaning of the statute allowing one who has made improvements upon real property under color of title to recover the value of such improvesment in an action to recover the' possession of the property. The court, therefore, in awarding to the defendant the benefit of the improvements and the money paid upon the contract, as against the value of the use and occupation of the property, erred, if error there was, in favor of the defendant. The defendant made no offer to pay the balance due under the contract, or in any manner to comply with its terms. Barnes v. Clement, 12 S. D. 270, 81 N. W. 301. And he was not, therefore, in a position to ask the court to relieve him from fulfilling the terms of his agreement.
The court made findings upon every issue raised by the pleadings, and was clearly rigfit in holding that the plaintiff was entitled to the possession of the premises as against the defendant, and in rendering judgment therefor, and for ‘the value of the use and ocdupation therein specified.
The judgment of the circuit court is affirmed.