24 S.D. 184 | S.D. | 1909
The plaintiff, by his complaint, among other things, alleged that the defendants engaged in the real estate business in September, 1902, and informed plaintiff that they were -the owners in fee of a certain quarter section of land situated in Jerauld county, and that defendants at said time entered into an agreement with plaintiff, whereby they sold said premises to plaintiff for the sum of $1,000 in cash, and, upon the payment of said sum, defendants agreed to immediately make, execute, and deliver to plaintiff a good and sufficient warranty deed of said premises free and clear of all incumbrances; that, in pursuance of such agreement, the plaintiff on the 26th of September, 1902, paid to defendants the said sum of $1,000, that defendants have ever since failed and neglected to convey said premises to plaintiff by .a good and sufficient warranty deed or otherwise, although often requested so to do; that plaintiff has also often requested and demanded that defendants return to him the said sum of $1,000, but that the defendants have always failed and neglected and refused to repay the same to plaintiff, and that there is now due to plaintiff from defendants by reason of the forgoing allegations the
The defendants bring the cause to this court on appeal, and urge that it was error to -refuse defendants a trial by jury. The defendants contend that plaintiff knew before the commencement of this action that defendants had no title or interest in said land, and that it was not within their power to specifically perform said contract, and that, under such circumstances, the plaintiff’s only remedy was an action at law to recover damages for breach of the contract, and that defendants could not be deprived of their right to trial by jury by joining in the complaint the allegations and claim for specific performance on the equity side of the court. We are of the opinion that defendants are right in this contention.
Of course, there are some well-recognized and well-established exceptions to the foregoing rule, for instance, in a case when specific performance ought to have been and could have been decreed upon the state of facts existing when the suit was commenced, but cannot be decreed on the hearing of the case, because of some conduct on the part of defendant pending the suit whereby he has voluntarily disabled himself to make a conveyance; or where by reason of any other wrongful or fraudulent act of defendant which would be ground for equitable relief, rendering damages inadequate, or where plaintiff by reason of the conduct of defendant or by reason of other surrounding circumstances honestly and in good faith was warranted in believing that specific performance would be decreed on the trial, although mistaken in that belief; or in cases where there are special circumstances justifying the exercise of equity jurisdiction on account of inadequacy of damages, but for the purposes of the particular case are ineffectual from any reason, the courts have retained jurisdiction and rendered a judgment for money damages only, notwithstanding there was no equitable relief granted by such judgment.
Formerly it was the practice where the court rendered an unauthorized money judgment in an ostensible equity case that the action be dismissed and plaintiff relegated to the law side of the court to begin his action over anew; but, under our Code practice, we are of the opinion that the enforcement of such rule of practice is improper. Section 144, Code Civ. Proc. S. D., provides that plaintiff may unite in the same complaint several causes of action, whether legal or equitable or both, arising out of the same transaction. The court in the case of Sternburger v. McGovern, 56 N. Y. 12, in construing an identical statute, used this language: “But the Code authorizes the uniting of causes of action, both legal and equitable, arising out of the same
The judgment of the circuit court is reversed, and a new trial ordered in that court, and the cause remanded for further proceedings in' conformity with this opinion.