137 N.W. 52 | S.D. | 1912
The defendant, a married man, entered into' a contract with plaintiff, whereby he contracted to sell and convey, and the plaintiff contracted to purchase, 360 acres of land in Roberts county, S. D., for the lump sum of $14,400. This contract was not signed by the wife of defendant, though the said land, which comprised three separate and distinct tracts, contained one tract of 160 acres which was the homestead of defendant and wife, upon which they were residing at the time the said contract was executed. This action is brought by plaintiff to enforce the specific performance of such contract so far as the land other than the homestead is concerned. Plaintiff asked that there be abated from the agreed purchase price an amount equal to the value of said homestead tract. There are absolutely no terms or conditions contained in said contract under which one can determine the valuation, if any, which the parties to said contract placed upon any separate tract of land; said contract being, in its nature, clearly indivisible in that regard. It was conceded by the plaintiff, as shown by his sworn testimony, that, at the time he entered into said contract, he knew part of said land was defendant’s homestead and that a contract in relation thereto was invalid without the signature of defendant’s wife. The evidence shows that,. prior to bringing the action, plaintiff tendered to defendant the total agreed purchase price and demanded a conveyance of the whole 360 acres of land. There is no claim that he tendered the full contract price and asked a conveyance of the land other than
It is the contention of appellants that, under said section, there is no contract which can be enforced in part by the court. Appellant also contends that, even if the contract was otherwise valid and binding upon the parties and such as, if unenforceable in toto, might yet support a decree for specific performance as to part of the land with or without damages for breach as to the remainder, such relief could not be claimed herein for the reason that plaintiff knew of -the homestead character of part of the land at the time said contract was entered into and knew that such con-contract was invalid at least to the extent of the homestead land'. Respondent contends that the facts of this case bring this contract under the well-established -rule under which a vendee may have specific performance of the contract so far as it.covers lands the title to which the vendor is able to convey, and may have an abatement from the contract price for that part of the land which he does not obtain. Respondent quotes the following from 36 Cyc. 74°: “Although the purchaser cannot have a partial interest, forced upon him; yet, if he entered into the contract in ignorance of the vendor’s incapacity to give him the whole, he is generally entitled to have the contract specifically performed as far as the
Bearing in mind the fact that part of this land was a homestead, we find that the only valid contract (if any valid contract ■ was entered into¡) was one to convey the -land other than the • homestead for the contract price of $14,400. This is especially true for the reason that respondent knew the contract was invalid as to the homestead. But, in view of the provisions of our statute, should such a contract be held to have any validity? We think not. Certainly the parties, though they knew of the invalidity of the contract so far as it related to the homestead, did' not intended to enter into any other contract than one covering all of said 360 acres of land, and the court should not make any other contract for them. It will thus be seen that this case differs in a most essential particular from those cases where parties have made a valid contract which valid contract the court seeks to enforce so far as possible. It must at all times be borne in mind that a contract tot convey land, part or all of which is not owned by the vendor, is valid unless declared invalid by express statute and the vendee can recover in damages for a breach thereof 01-can enforce specific performance even as to land not owned by vendor at time of contract if vendor has afterwards acquired title to same. Barnett v. Mendenhall, 42 Iowa, 296. It is such a contract, wholly valid, and not a contract -such as the one before us, to which -the rule quoted from 36 Cyc. applies.
But even if the contract were valid, yet, under the very authority quoted, respondent has no standing in a court of equity owing to the fact that he knew the true situation when -he entered into such contract. In 2 Pomeroy’s Equitable Remedies, §'
In the case of Lucas v. Scott, 41 Ohio St. 636, a case in many respects analogous to the case at bar, the court said: “The rule is well -settled ‘that a vendor whose estate is less than or different from that which he agreed to sell, or who cannot give the exact subject-matter embraced in his contract, will not be allowed to-set up his inability as a -defense against the demand of a purchaser who is willing to take what he can get with-compensation for that
The same exception to the general rule is noted in the notes following case of Eppstein v. Kuhn, 10 L. R. A. (N. S.) on page 1 iy.
The judgment of the trial court and order denying a new trial are reversed, with directions to the trial court to dismiss the complaint herein.