Hamann v. Egan

184 N.W. 236 | S.D. | 1921

WHITING, J.

Plaintiff seeks the rescission of an exchange of real estate. Findings and judgment of the circuit court were for defendant, and plaintiff has appealed from the judgment and an order denying a new trial.

[i] The only thing assigned by appellant as ground for reversal is the insufficiency of the evidence to support certain of the findings. Much of appellant’s argument is based on facts which she maintains the evidence supports. There being no record of any request for findings or any error assigned because of failure of trial court to make findings on matters not covered by the findings made, we are not concerned with what the court might have found.

[2, 3] The only ground for rescission alleged in appellant’s complaint was fraud. The trial court found against appellant on this ground, and rightfully, as there was not a scintilla of evidence to support such charge. The most that could 'be claimed by appellant was that respondent had not fully carried- out the terms of a contract fairly entered into. Respondent was to receive appellant’s land subject to $20,000 incumbrance. He was to pay appellant’s $4,500 as the agreed difference in values of lands, but from this $4,500 he was to pay off all excess of $20,000 that there might be against the land he received. . He has paid $2,238.22, which the court found applicable on the $4,500. Only a small part of this $2,238.22 is questioned by appellant. The evidence fully sustains the court’s finding. The court also found that there was mortgage incumbrance of $20,701.60 still against the land. This would leave $701.60 to be deducted from the balance due appellant. We are of the opinion that $200, of this $701.60 is not chargeable against appellant, and that the trial court erred to this extent; but such error would not alter appellant’s rights in this action. That which the trial court rightfully found justified respondent in withholding the balance of the $4,500.00 was the fact that the title to the land received by him was beclouded by two lis pendens representing alleged liens against the land in a sum far in excess of the said balance.. It appeared, upon the trial, but not before, that the judgment in one of the actions in which the lis pendens were issued had been paid; but it remained, as yet, an open question as to whether the judgment in the other action was a lien upon such land. Such judgment was for over $3,000. Respondent was fully warranted in retaining the balance of the $4,500 to pay off the $501.60 mortgage incumbrance, and to protect himself against the above-mentioned judgment, especially as it appeared that he had 'brought an action to determine whether such judgment constituted a lien on the land.

The judgment and order appealed from are affirmed.