14 S.D. 312 | S.D. | 1901
Before the defendant corporation was organized, negotiations between plaintiff and its promoters resulted in the delivery of a deed to about one acre of ground, of which the plaintiff was the owner and one Royce was in possession under a contract of purchase, and upon which the promoters of the corporation had. erected a creamery at a cost of not less than $2,500. .The value of the land so conveyed has not at any time exceeded $12. The interest of Royce therein was transferred to the plaintiff before this action was commenced. The conveyance to the proposed corporation contains the following language: “The consideration for this conveyance is that the party' of the second part shall during the year 1895 erect or cause to be erected upon the above-described premises a building and appliances suitable for a creamery or cheese factory, and continue to operate the same in the business of manufacturing butter or cheese; and should such business be discontinued at any time during the proper season for conducting the same, the above-described premises shall revert to the parties of the first part, or either of them, as their, interest may appear, together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining, and all the estate, right, title, interest claim, or demand whatsoever of the said party of the first part, either in law or equity, either in possession or in expectancy of, in, and to the above-bargained premises and their hereditaments and appurtenances.” This action having been begun to recover possession of the premises, defendant answered by way of counter-claim, alleging that the deed from the plaintiff does not express the contract made by the parties, and demanding that it be reformed to correspond therewith. To the counter-claim a general denial was interposed, and the issues thus presented were tried without a jury, the court concluding that the deed is null and void, that it is not binding
The only assignments of error referred to in appellant’s brief are that the court erred in making findings of fact numbered 8 and io, and that it erred in its conclusion of law in holding that the deed ought to be canceled. The findings referred to are as follows: “(8) That said Leonard, or said Royce, or any of the parties for whom said Leonard was acting, did not know at any time that said deed contained the condition hereinafter mentioned, and never presented the same to said defendant corporation, and the same was never presented to it for acceptance, and never was accepted by it, and said corporation or its officers never had any notice or knowledge of its terms prior to the commencement of an action by this plaintiff to recover said premises for conditions broken, on or about September i, 1897.” “(10) That the defendant did not know that the foregoing condition was inserted in said deed, and did not agree that it should be so inserted; nor did said Leonard know that it was so inserted, or agree that it should be so inserted; nor did the defendant, or any one acting in its behalf, agree with the plaintiff upon the terms of any condition to be inserted in said deed respecting a forfeiture of said premises to the grantors; and, if the same is left outstanding, may cause serious injury to the defendant.” Unless there is a clear preponderance of the evidence against these findings, they cannot be disturbed. Reagan v. McKibben, 11 S. D. 270, 76 N. W. 943; Randall v. Burk Twp., 4 S. D. 337, 57 N. W. 4. There is positive testimony tending to prove that none of the promoters or officers of the corporation knew of the conditions contained in the deed. It would be unreasonable to suppose that they did. It is not possible that any person