86 N.W. 697 | N.D. | 1901
This is an equitable action brought to compel the specific performance of an alleged agreement to sell and convey a section of land which is« described in the complaint, and situated in the county of Cass. The complaint alleges, in substance, that the plaintiff and the defendant entered into an agreement on May 28,. 1898, whereby the plaintiff agreed to purchase, and de
The court below adjudged: First, that the defendant was not vested with a merchantable title to the land in suit; second, “that the defendant be required to perfect the title to said land within a reasonable time, by continuing at his own expense to final judgment the suit now pending in the circuit court of the United States for the District of North Dakota in which J.‘ B. Lockhart is complainant and E. Ashley Mears and Clarence T. Mears are defendants, and by prosecuting in this court an action to' remove the cloud on the title to said land caused by the following instruments, viz:” The judgment next proceeded to designate certain instruments as constituting clouds or incumbrances upon defendant’s title, viz. a certain deed, mortgage, and contract. There are numerous other features of the judgment, which need not be set out, except that it was adjudged “that until such deed be given, or until such time as it is disclosed by the judgment of any court of competent jurisdiction that said title cannot be freed from all incumbrances and adverse interests, the plaintiff shall remain in possession of said land.” The judgment clearly anticipates that the litigation to perfect title which the court directs to be instituted and carried on will be of some considerable duration, and to meet this situation the court directs as follows: “That on or before the 1st day of October, 1901, 1902, and 1903, if the matters here in dispute are not sooner settled, the plaintiff shall pay to the defendant in cash $672, the annual rental value of said land, which amount, in the event of a title being secured and transferred to plaintiff, shall be credited as a payment on the purchase price of said land; that, in the event of the inability of the defendant to pass the title to the plaintiff, he (the defendant) shall have judgment against the plaintiff for the sum of $672, the rental value of said property for the year. 1899.” There are other features of the judgment, including that for costs and disbursements, which need not be further mentioned.
An examination of the evidence and proceedings at the trial, as embraced in the record, discloses the fact that the chief contention of counsel in the case is, and has been, whether the defendant’s title to the land in controversy was, when the agreement was made
In our further discussion of the case we shall accept the plaintiff’s version of the facts as disclosed by the evidence, and shall assume, without passing upon the point, that the defendant, when he entered into the sale agreement with the plaintiff, did not possess, and has not since acquired, a good, valid, and merchantable title to the land in question. Upon this assumption, it would follow that the defendant at no time has been in a position- to invoke the powers of a court of equity to compel a specific performance of the agreement in his own favor. See authorities supra. But, to determine whether the plaintiff has ever been in a position to compel a specific performance, it becomes necessary to ascertain from the evidence exactly what the agreement was. In cases of this kind the precise terms of
Conceding to the plaintiff the full benefit of all of this testimony, it appears that the parties entered into a conditional agreement whereby the defendant agreed to sell the land, and give a good and valid title thereto to plaintiff, upon receiving the purchase money, provided that a certain party living in the east would consent to accept the amount due on a mortgage which he held, and which was then an incumbrance on the land, and defendant agreed to promptly ascertain and report if the mortgagee consented to accept his money. We also discover that the agreement on the part of the plaintiff was entirely conditional. He did not agree to purchase the land absolutely and at all events. His' agreement was to buy the land, and pay the stipulated price down in cash, provided that he succeeded in obtaining the necessary funds from one A. R. Dalrymple, who had agreed provisionally to advance sufficient money as a loan to pay for thevland, and take security therefor upon the land. But this agreement was subject to the vital proviso that Dalrymple should, after an investigation which was then on foot, and was being made by Dalrymple’s attorneys, Messrs Carmody & Leslie, accept and pass the title as a valid, legal, and merchantable title, and such a title as the attorneys of Dalrymple would approve, and advise Dalrymple to accept as security for the desired loan. It may be well to pause here and consider whether the agreement as above stated, when concluded, was of a character which could have been specifically enforced by either party as soon as it was made. This question, obviously, must receive a negative answer. The defendant did not agree to sell unless he could procure a release of the mortgage, and until that was done the agreement was not enforceable as against the defendant. On the other hand, the agreement of the plaintiff was also wholly conditional, and the condition was not one within plaintiff’s own control, but was entirely a matter within the discretion of another person, through whom alone the plaintiff hoped to obtain the funds with which to complete his purchase, according to the
The evidence shows that the plaintiff entered upon the land about June x, 1898, and between that date and the 12th day of July, 1898, broke the entire section. Plaintiff took possession within a few days after receiving a certain telegram signed by the defendant and addressed to plaintiff, which bears date May 28, 1898, and reads as follows: “Deal closed. Go ahead and break section seventeen,”— which section is the land in controversy. The record is replete with evidence that both parties have attached great importance to this telegraphic message, but this court is unable to see its bearing upon the contract of sale. It did give plaintiff permission to enter upon the land and begin the work of breaking, but it went no further. True, it declared in terms that the deal was “closed.” Still, this statement, in the light of the evidence, is of little significance. Both parties knew that the message simply meant that the mortgagee had consented to accept his money, and that the message was sent to apprise the plaintiff of that event, and for no other purpose, except to convey to the plaintiff the fact that the defendant was willing that plaintiff should enter upon the land. When the message was sent, and when it was received, both parties necessarily knew that the deal was not “closed,” and that the telegram neither closed it, -nor referred to any event which could operate to close the deal. , When the message was sent and received, the deed had not been delivered or tendered; nor had the purchase money been paid over or tendered; nor had Mr. Dalrymple in any wise indicated that he was satisfied with the title, which his attorneys were then investigating, and upon which they had at that time not finally reported. These facts, despite the optimistic language of the telegram, demonstrate that the
But, in our judgment, there is another cogent reason why specific performance in plaintiff’s favor should not be granted. The complaint states that plaintiff “offers to pay into court the entire purchase price of said land, * * * to be held by the court until the defendant shall perfect his title to said land.” This action was commenced on the 12th day of August, 1898, nearly three years ago, and as yet the promise of the complaint has never been performed. No part of the consideration has been paid into court, or offered to be paid. The evidence warrants the conclusion that the plaintiff is without the ability to pay the purchase money out of his own resources, and there is no evidence that plaintiff has.ever made any definite agreement for a loan with any person, except that tentatively made with A. R. Dalrymple, as before stated. The evidence fully justified the trial court in making the following finding of fact: “That plaintiff has not paid any sum into court, nor is he able to do so without borrowing the same; and there is no evidence in the case that will warrant a finding that he is able to borrow the amount of the purchase price of said premises for the purpose of paying the same into court to abide the event of favorable action on plaintiff’s part.” The deposition of A. R. Dalrymple was taken and read at the trial. His testimony was to the effect that he had at all times been ready and able to advance the amount of the purchase money, and was willing to do so whenever Mr. Leslie would pass the title. He further testified that he had at all times a deposit in a bank sufficient in amount to purchase the land, but there is no evidence that any sum had ever been set apart or kept by him as a special deposit for this purpose. Nor has plaintiff ever deposited any part of the purchase money in any bank as a fund to be used in paying- for the land. The plaintiff has been in the exclusive possession of the land since about June t. 1898. and during the years 1899 and 1900, and up to the present time, has been cropping the land. Upon the oral argument in this court it was stated bv counsel for the appellant that A. R. Dalrymple had departed this life, and the truth
But this conclusion leads up to other complications which have crept into the case in the course of a protracted litigation. The record shows that at defendant’s request a receiver was appointed, and has performed certain services as such, and that he has received certain compensation, a part of which has been advanced by the defendant, and that the receiver has been discharged. It further appears that since judgment was entered below, and prior to an appeal to this court, the plaintiffs upon an order made by the trial court and dated September 4, X900, paid $1,000 into court, to remain as security for the payment of any judgment that may finally, be recovered against plaintiff in this action. The record further shows that the trial court, upon evidence offered in the case, ascertained the value of the plowing and ditching on the land as done by the plaintiff, and further found the annual rental value of the land. In view of these consideration, and the further fact that the plaintiff at the present time is cultivating a crop of grain now growing upon the premises, we have concluded that principles of justice, as well as the interests of the suitors, will be best subserved by retaining jurisdiction in equity to adjust the rights of the parties in the present action; and we think the court below, under all the surroundings of the case, should retain jurisdiction for this purpose. It is doubtful, perhaps, under strict principles applying to this class of cases, whether the plaintiff would be in a position to demand that the case should be retained in a court of equity for the purpose of