201 N.W. 707 | S.D. | 1924
Plaintiff and defendant entered into a contract in writing in July, 1919, whereby plaintiff sold certain Minnesota (ands to defendant upon a down payment of $1,600, $1,000 to be paid March 1, 1920, $1,000 March 1, 1921, $1,000 March 1, 1922, $1,000 March 1, 1923, $1,000 March 1, 1924, and a mortgage for the residue, $4,600, to be given to plaintiff March 1, 1924.
This action was brought in November, 1922, to recover the installment of $1,000 due March 1, 1922, together with unpaid interest on deferred installments and taxes paid by plaintiff. The appeal is by plaintiff fromi an order overruling a demurrer to defendant’s answer.
Two legal propositions are raised by the appeal. The? first is as to the allegation in the answer as to a lack of consideration. The allegation is:
“That the defendant received no consideration for the alleged contract herein.”
Such an averment is bad on demurrer, since, if the contract has a consideration to support it, that is sufficient, whether it was received by defendant or by some one else by his consent. 13 C. J. 740. Furthermore, the copy of the contract attached to the answer admits a consideration, and defendant is estopped thereby from denying it. McPherson v. Fargo, 10 S. D. 611, 74 N. W. 1057, 66 Am. St. Rep. 723.
The other question is whether title in plaintiff at the time of bringing this action is a prerequisite to the bringing of it. It appears from the answer that the title to some of the tracts covered by the contract is not in appellant, and that there are certain liens thereon. It must be remembered that this is not an
Under such circumstances, the general rule seems to be that title in the vendor at the time of bringing the action is not 'a prerequisite thereto.
“In the absence of fraud, insolvency or other equitable considerations, or a contract stipulation, requiring an abstract showing perfect title, a defect in the record title of the vendor in an executory contract for the sale of land * * * will constitute
no. ground for rescission by the vendee or justification for refusal to make deferred payments on the agreed purchase price of the property. * * *
“All the vendee may rightfully insist upon in such, case is that the title be perfect at the time fixed by the contract for final performance.” Smith v. Kurtzenacker, 147 Minn. 398, 180 N. W. 243.
See, also, 39 Cyc. 1529; Martinson v. Ryan, 18 N. D. 467, 123 N. W. 285; note, 21 L. R. A. (N. S.) 382; 27 R. C. L. 614; Knapp v. Davidson, 179 Wis. 493, 192 N. W. 75; Hogsed v. Gillett, 60 Mont. 467, 199 P. 907; Craig v. White, 187 Cal. 489, 202 P. 648.
We are therefore of the opinion that the trial court erred in overruling the demurrer to the answer, in respect to the portions of the order appealed from.
