| N.D. | Mar 18, 1913
Lead Opinion
(after stating the facts as above). The defendants’ contention and attitude during all the time since the execution of the contract set out above have been based upon the supposition that the contract called for title in plaintiff at the time it was entered into, and that, without such title, defendants could not be compelled to perform in accordance with the requirements of the contract. Herein they are mistaken. The contract did not require title to be in plaintiff when executed. The plaintiff did not agree to show title in itself at such time. It agreed to convey title at a future date. While it is altogether probable that, had the plaintiff been without any interest in section 13, the contract to convey might not be sanctioned, yet it is well-established law that, as a general rule, when a contract is entered into in good faith, the vendor having an estate or interest in the land, it is not necessary that he be actually in a situation to perform at the time the contract is made; that the most that is required of him is that he be able to perform when the vendee has a right to call upon him for performance. This is the established law of this state. Martinson v. Regan, 18 N.D. 467" court="N.D." date_filed="1909-11-04" href="https://app.midpage.ai/document/martinson-v-regan-6736165?utm_source=webapp" opinion_id="6736165">18 N. D. 467, 123 N. W. 285. See also: Townshend v. Goodfellow, 40 Minn. 312" court="Minn." date_filed="1889-03-25" href="https://app.midpage.ai/document/townshend-v-goodfellow-7965969?utm_source=webapp" opinion_id="7965969">40 Minn. 312, 3 L.R.A. 739, 12 Am. St. Rep. 736, 41 N.W. 1056" court="Minn." date_filed="1889-03-25" href="https://app.midpage.ai/document/townshend-v-goodfellow-7965969?utm_source=webapp" opinion_id="7965969">41 N. W. 1056 ; Easton v. Montgomery, 90 Cal. 307" court="Cal." date_filed="1891-07-21" href="https://app.midpage.ai/document/easton-v-montgomery-5445413?utm_source=webapp" opinion_id="5445413">90 Cal. 307, 25 Am. St. Rep. 123, 27 P. 280" court="Cal." date_filed="1891-07-21" href="https://app.midpage.ai/document/easton-v-montgomery-5445413?utm_source=webapp" opinion_id="5445413">27 Pac. 280 ; Gray v. Smith, 76 F. 525" court="None" date_filed="1896-08-10" href="https://app.midpage.ai/document/gray-v-smith-8856548?utm_source=webapp" opinion_id="8856548">76 Fed. 525.
Courts do not make contracts for parties. Had defendants desired a perfect title before transferring their property or making payments, they should have contracted with reference to the title, at the date of
As far as the equities in this ease go, the record discloses, and particularly the correspondence, which we have not set out, that for many months the plaintiff was seeking to carry out its agreement, and was only requiring of the defendants that they perform on their part the conditions which were required by the contract they had made. The contracts which were presented to defendants were executed by the plaintiff, and all that was necessary in the first instance was for the defendant to have executed them, and to have deeded the Sioux Falls property, as the defendant John Johnstone agreed to do. We need not consider whether the contract was the joint contract of John and Carrie Johnstone or only the contract of John Johnstone, in the view of the law which we take. It seems to have developed that the title to the 'Sioux Falls property was in Carrie Johnstone, and that, after her becoming insane, she could not have executed, and there was no one who, on her behalf, could have executed, a warranty deed thereto. This, however, we deem, under the facts, immaterial. They were given every opportunity that any reasonable person could demand, to perform. They refused until the value of the land had greatly enhanced, and then alleged that they were ready to perform, and claimed the right to pay all cash, instead of conveying the Sioux Falls property as a part of the consideration. The plaintiff proceeded in accordance with the provisions of our statute for the cancelation of contracts. No equities .arose over any payments made, because none had heen made by the defendants, and it appears to us to be a clear case in favor of the plaintiff.
We may add that there was some claim made in argument, of fraud ■on the part of plaintiff by reason of the fact that defendants had seen, or been given, a circular advertising lands for sale by plaintiff, which •circular stated that the title was perfect and held under only one conveyance from the government. Whether, had defendants bought on
To sum the case all up, it amounts to this, that the plaintiff held an equitable title to section 13, and could procure legal title thereto whenever needed; that the defendants were given every opportunity to comply with the terms of their contract, but never made any attempt to do so. They paid nothing down; they failed to transfer their Sioux Falls property, as agreed, or at all; they did not make the payments called for by the contract, and refused to execute the new contracts. They attempted to cast all the burdens on the plaintiff, making it take all the risks involved, on both sides of the transaction. Without right to do so they entered into the possession of section 13, cropped it several years, there was a material increase in its value, and after this has occurred they seek to be relieved from compliance with the terms of their compact, and to hold plaintiff, not only to the conditions thereof, but to additional conditions or requirements which were never contemplated or provided for in the contract. To permit the defendants to maintain specific performance under such facts and circumstances would certainly afford them an advantage which no court of equity can permit, in the face of the objection of the other party.
As near as we can figure from the record, the defendants had the use of 1,450 cropped acres, and they broke, on the land, 480 acres. The trial court granted the plaintiff judgment for $3,000 for the use and occupation of this land. The evidence regarding its value is very unsatisfactory. Were it perfectly clear we should not assume to modify this judgment, but in the condition in which we find it we think this allowance is excessive, and that, taking the figures given as near as we can reach them, this judgment should be modified to the sum of $2,185, that being $2.50 per acre for the use of the cultivated land, with a credit of $3 per acre for the breaking. The District Court will modify the money judgment in accordance with these views, and -when so modified it stands affirmed. Each party will pay its own costs on appeal.
did not participate; J. A. Coefey, Judge of the Fifth Judicial District, sitting in his place by request.
Rehearing
On Petition for Eehearing.
This court would have been more than justified in granting the motion made to strike out the statement of the case, appellants’ abstract, and brief, for failure to conform in any material respect to the rules of this court. The original opinion was written with the idea that it would, however, be more satisfactory to both parties to have a decision on the merits than on a question of practice ; and notwithstanding the fact that the failure to comply with the rules imposed upon this court much arduous labor, and rendered it extremely difficult to arrive at a determination of what questions were involved, counsel for appellant files a petition for a rehearing in which he, evidently relying on the incomplete abstract prepared by him, one which sets out only that part of the evidence which he apparently thinks favorable to his clients, states that this court has misstated the facts. Doubtless we did state facts which did not appear in his abstract. There are, however, two abstracts, neither one complete. We were compelled to reach the facts as best we could from the pleadings omitted from the original abstract, and from a search of the evidence as scattered without order through both incomplete abstracts. After spending nearly a week on a review of the record on the petition for rehearing, we are unable to discover that we materially misstated any fact. And what we say here is more in explanation of our holding than in stating any new or different propositions of law. While our opinions are not such as a case of this importance would seem to require, they are as elaborate as the brief of appellant and his specifications justify.
The defense was that the defendant Johnstone was entitled to specific performance of the contract, because plaintiff did not have title when the contract was made. Counsel suggests in his application for rehearing, for the first time, that appellant Johnstone had no knowledge of title not being in respondent when he executed the contract, but he made no specification on the subject. The evidence submitted by the defendants was very brief, and on this point we are not clear that it shows a lack of knowledge regarding respondent’s title when the con
As far as we are able to interpret the authorities cited by respondent, they are not in point; they are cases where the payment and delivery of deed were to be coincident, or where the contract had been made with reference to the condition of the title when entered into, or in which the vendor was not in position to acquire title. In the case at bar the time had not arrived for the delivery of title, and the conditions were fully explained to Johnstone before notice of cancelation was given. We may add to the facts originally stated that an officer of plaintiff made a trip from St. Paul to Beach a few days before such notice was given, and then restated to Johnstone the facts as to the title, and informed him of the conditions of its contract for title, and that he could get a deed on payment; that he told him they could let the matter rest no longer, and requested him to have the contracts executed; but that he refused absolutely to close the deal, and was then notified that steps would be taken at once to cancel the contract.
Much stress is laid upon the fact that Carrie Johnstone is insane and that her rights ought not to be litigated. The contract was not with her, but was with John Johnstone. However, if she had rights,
As bearing on this case see: Easton v. Lockhart, 10 N.D. 181" court="N.D." date_filed="1901-06-05" href="https://app.midpage.ai/document/easton-v-lockhart-6735239?utm_source=webapp" opinion_id="6735239">10 N. D. 181, 86 N. W. 697 ; Kulberg v. Georgia, 10 N.D. 461" court="N.D." date_filed="1901-11-07" href="https://app.midpage.ai/document/kulberg-v-georgia-6735288?utm_source=webapp" opinion_id="6735288">10 N. D. 461, 88 N. W. 87 ; Annis v. Burnham, 15 N.D. 577" court="N.D." date_filed="1906-06-27" href="https://app.midpage.ai/document/annis-v-burnham-6735838?utm_source=webapp" opinion_id="6735838">15 N. D. 577, 108 N. W. 549 ; Bennett v. Glaspell, 15 N. D. 245, 107 N.W. 45" court="N.D." date_filed="1906-03-14" href="https://app.midpage.ai/document/bennett-v-glaspell-6735773?utm_source=webapp" opinion_id="6735773">107 N. W. 45 ; Duluth Loan & Land Co. v. Klovdahl, 55 Minn. 341" court="Minn." date_filed="1893-11-29" href="https://app.midpage.ai/document/duluth-loan--land-co-v-klovdahl-7968146?utm_source=webapp" opinion_id="7968146">55 Minn. 341, 56 N. W. 1119 ; Provident Loan Trust Co. v. McIntosh, 68 Kan. 452, 75 Pac. 498, 1 Ann. Cas. 906 ; Trask v. Vinson, 20 Pick. 105 ; 2 Beach, Eq. Jur. § 611. The cases from 55 Minn, and 68 Kan. supra, are directly in point.
While we conclude that the petition for a rehearing must be denied, the money judgment should be further modified by making the allowance for breaking $3.50 per acre instead of $3, and while it appears that Johnstone never literally paid any taxes on section 13, he did purchase it at tax sale, on two or more occasions, and may have caused the taxes to be paid one year. The amount of his tax certificates, and such receipts for taxes as may he produced and show payment by him or Carrie Johnstone, with interest thereon at 7 per cent, will be deducted from the amount heretofore found due by this court, as will the 50 cents per acre for breaking.