4 S.D. 615 | S.D. | 1894
This was an action to rescind, and have declared null and void, a certain contract entered into between the plaintiffs S. C. Fletcher anqL C. S Fletcher, parties of the first part, and D. P. Greeley, Jr., party of the second part, on the 19th day of May, 1891; and-also to have declared null and void and canceled, certain conveyances made thereunder. The circuit court rendered judgment for the plaintiffs, a motion for a new trial was made and overruled, and from the judgment and order denying a new trial the defendants appealed.
The material parts of the agreement in controversy in this action are as follows: “That the said parties of the first part have this day sold and traded, and agreed to convey and cause to be conveyed, by good and sufficient warranty deed, to such parties or party as the second party shall direct, the following described real estate situated in the county of Boone, in the state of Nebraska, to-wit: * * *; and also the following described real estate situated in the county of Turner and State of South Dakota; * * * In consideration whereof said second party has this day sold and traded, and agreed to convey and cause to be conveyed, to said first parties, as said first parties may direct, by good and sufficient warranty deed, the following described real estate situated in the county of Woodson and state of Kansas: * * * A.nd it is further agreed, by and between said first and second parties, that whereas, there is now a mortgage upon the said above described land in said Woodson county for the sum of six thousand dollars ($6,000.00), which said second party is to cause to ‘be paid off and discharged, the said deed to the Nebraska land above described shall be, when signed and acknowledged, deposited with Stephenson and Hoagland, attorneys, at Yates Center, Woodson county, Kansas, to be by them held and delivered as hereinafter provided. When the said D. P. Greeley shall deliver to said Stephenson and Hoagland a full release of the said mortgage, on or before the first day of July, 1891, together with a receipt from said C. S. Fletcher for the sum of one thousand and forty dollars,
The first question, therefore, for chis court to determine, is what was the actual intention of the parties at the time the contract was made? Reading the contract in the light of the surrounding circumstances, it seems to be clear that the intention of the Fletchers was to trade the Dakota and Nebraska lands
Is the language of the contract such as to preclude the
It is further contended by appellants that, if it was an entire contract, the plaintiffs had no right to rescind, as it was executed, as far as the Dakota and Kansas lands were concerned, the parties having executed deeds, and the deeds to the Dakota property having been delivered. But we cannot agree with appellants in this contention. It was not an executed contract, .but only executed in part. Section 3589, Gomp. Laws, provides that “a party to a contract may rescind the same in the following cases: * * * 2. If through the fault