208 N.W. 981 | S.D. | 1926
This action was here on a former appeal, and will be found reported in 45 S. D 132, 186 N. W. 555, to which reference is made for a statement of the facts. The
The present case differs from the second case of Ontjes v. Thomas, in that plaintiff’s title was apparently good, but the evidence clearly showed that, while Rardin was in good faith attempting to carry out the provisions of the contract, and before plaintiff had tendered a good and sufficient deed or any deed, defendant was notified on March 27, 1920, by plaintiff and appellant that he had determined to exercise his right of declaring the contract forfeited, together with all rights and claims of the defendant thereunder, and all payments made by him, and that the payments would be retained by the plaintiff in satisfaction of damages sustained by reason of defendant’s default. And thereafter on April 9, 1920, appellant brought this action, not an action for a strict foreclosure of a real estate contract, but to quiet the title to the land.
'Under the authority of Ink v. Rohrig, 23 S. D. 521, 122 N. W. 594; and Hauert v. Kaufman, 45 S. D. 132, 186 N. W. 555; Ontjes v. Thomas, 45 S. D. 426, 187 N. W. 726; Saunders v. Erickson, 45 S. D. 500, 189 N. W. 116; Moter v. Hershey, 48 S. D. 493, 205 N. W. 239; Eno v. Knox, 49 S. D. 290, 206 N. W. 1004, the covenants were mutually dependent, and, in view of the fact that the contract contains no provisions as to the place
And for these reasons the judgment of the lower court should be affirmed.