171 N.W. 334 | N.D. | 1919
Appeal from a judgment of the district court of Ramsey county, Noz’th Dakota, Honorable Frank E. Fisk, Judge.
The action is one brought by the plaintiff against the defendant for specific performance to compel the defendant to convey to plaintiff by warranty deed to S. -J of S. E. \ and the S. -£ of S. W. ¿ of section 1, township 156, range 60 West of the 5th principal meridian and containing 160 acres more or less according to the government survey thereof. The right to require specific performance and the conveyance by warranty deed of the land is based upon conditions and provisions of a certain contract for deed with reference to said land which will be more fully described hereafter and with the terms of which the plaintiff claims full compliance. On the 9th day of March, 1909, one Oliver Davidson entered into a contract for deed with one J ames Ii. Langton with reference to the land in question. The contract was recorded in the office of register of deeds of Ramsey county, North Dakota, March 5, 1913. The purchase price of the land was $3,200, and was payable = on or before five years from March 9, 1909. A promissory note for $3,200, dated March 9, 1909, for the purchase price, and payable on or before five years after date, was executed by Langton to Davidson. On the 24th day of October, 1913, Davidson conveyed the land by warranty deed to Charles Kops subject to the contract. On the 8th day of August, 1912, James II. Langton made a written assignment of his interest in the contract to Lovina Langton. On the 17th day of March, 1916, Lovina Langton, then Lovina Hutchinson, and Mark Hutchinson, her husband, by warranty deed sold and conveyed all her
November 3, 1909 . $576.80
December 18, 1911 .411.94
In 1912 . 163.27
December 18, 1912 . 500.00
December 18, 1913 . 161.00
February 14, 1916 . 522.00
January 4, 1917, tendered as the balance due upon the contract at that date, in the sum of $2,253.94.
There is really but a single question presented in this case, namely: Was the sum $2,253.94 tendered to defendant by plaintiff on January 4, 1917, equal to the amount due on the contract at that date? The defendant, for two reasons, claims it was not. First, that the payment of $163.27, paid in 1912 for the purpose of tailing up two interest coupons on a certain mortgage which was against the land and which was about to be foreclosed by reason of the nonpayment of such interest coupons, were not a proper credit in plaintiff’s favor and not chargeable to the defendant. It appears from the record that it was the duty of Davidson to have paid the interest coupons. He did not do so, and in order to prevent a foreclosure, James II. Langton, to whom Davidson had issued the contract for deed for the land, paid the interest coupons and charged the amount to Davidson. This was before the land was deeded to Kops by Davidson and was a proper charge in Langton’s favor against Davidson, and entitled him to credit in that amount on the contract at that time. Kops toolc the deed to the land from Davidson subject to the contract of deed and subject to any rights of Lang-ton. He took it, therefore, subject to the credit of $163.27, paid to take up the interest coupons paid by Langton to prevent foreclosure of the mortgage which it was first the duty of Davidson to have paid. Hnder these circumstances, the $163.27 was properly credited as a payment on the contract.
The remaining question relied upon by defendant is that he is entitled to charge interest on the annual interest after it became due and
“It is virtually understood and agreed by and between the parties hereto that the annual payment to be made on this contract shall be made out of the proceeds of one half' of all crops grown on the within-described land during the continuance of this contract or until the full amount shall have been paid. Further, that the party of the second part shall have the right and privilege to pay as much more than the proceeds of one half of all crops as he shall elect during each and every year of this contract. It is especially understood and agreed between the parties hereto that the party of the first part shall be entitled to two-thirds share of said crops during the season of 1909.”
From this, it appears that Langton or his assignee had the right to apply one half of the crop from the land each year upon the' amount owing upon the contract. We think if the crop were harvested and threshed the application of one half the crop, or more, if Langton or his assignee desired, might be paid upon the contract any time during that year and they could do likewise each year during the life of the
The judgment of the District Court is affirmed, with the statutory costs.