1 N.D. 284 | N.D. | 1890
Plaintiff in his complaint alleged that on and prior to November 12, 1884, he was the owner in fee of certain real estate situated in Benson county, in the then territory of Dakota; that he held a patent for such land from the United States, and that on said November 12,1884, entered into an agreement with defendants under the name of D. L. Wilbur, trustee, for the sale of said lands as follows: “This agreement made and entered into this 12th day of November, A. D. 1884, by and between Thomas J. Larison and Catherine A. Larison, his wife, of Benson county, D. T., of the first part, and D. L. Wilbur, trustee, of Stutsman county, and territory of Dakota, of the second part: That for and in the consideration of the sum of forty-two hundred dollars, to be paid as hereinafter mentioned, said parties of the first part agree to sell and convey, by good and sufficient warranty deed, to said second party, the east half of the south-east quarter and the east one-half of the north-east quarter of section sixteen, in township number one hundred and fifty-three north, and range number sixty-seven west, of the 5th principal meridian, D. T. The said deed shall be subject to a mortgage of three hundred dollars given
He then alleged the payment and receipt of a certain amount on the contract, and a full performance on his part of all the terms of said contract, including a tender of the deed, but that defendants had failed and refused to accept said deed, or pay for said land, according to the terms of said contract,» and a decree was prayed enforcing the balance due under the contract with certain special and specific relief. The defendants Wilbur and Nickeus answered as follows: First They deny each and every allegation in said complaint, save such allegations thereof as are hereinafter specifically admitted. Second. They admit that on and before the 13th day of November, 1884, the plaintiff was and now is the owner of the E. J of the S. E. J, and the E. ^ of of the N. E. 4 of section 16, in township 153 north, of range 67 west. Third. In answer to paragraph 3 of plaintiff’s complaint, defendants aver on or about July 20, 1883, defendants Hager, Cross, Wilbur, and Nickeus entered into an oral contract, but not as partners, with the plaintiff herein, whereby he agreed to pre-empt, prove up, and deed all of the said tract of land mentioned and described in said complaint, to-wit, the E. J of the S. E. and the E. J of the N. E. J of section 16, in township 153 north, of range 67 west, to these defendants and
The answer sets up a parol contract for the sale and purchase of the same lands made more than a year before between Thomas J. Larison and the defendants individually. The terms of this parol contract are fully set forth, and the answer alleges that the written instrument set out in the complaint is this parol contract reduced to writing. There is a demurrer to the answer, and hence both contracts stand admitted as pleaded. Both standing admitted, the question whether or not they are the same contract is a conclusion of law, and not admitted by the de
In our view it is idle to say that the parties never made but one contract, that their minds never met after June 3,1883. When the parties voluntarily and understandingly executed and