163 N.W. 724 | N.D. | 1917
Lead Opinion
The plaintiff brings this action to quiet his title to 160 acres of land in Wells county. The defendant claims specific performance as the assignee of a cropping land contract of sale, and under a special contract, dated June 3, 1911, whereby he agreed to pay to the plaintiff $450 on the 15th day of October, 1915, and to summer fallow the lands under cultivation during the season of 1911. But the defendant did not pay the $450; he did not summer fallow the land; he has never paid any taxes on it; he never did a thing towards complying with the contract for the purchase of the land. The original purchaser agreed to pay for the land $3,840, with interest from November, 1906, and to pay all taxes. His payments were less than the interest. He had no real equity in the land. In February, 1912, the plaintiff served •on defendant a written notice to cancel the contract by reason of the failure to pay the $450 and to summer fallow the land. Defendant ■claims the notice was void, but that is of little consequence, as the defendant makes no showing to appeal to a court of law or equity.
Specific performance cannot be enforced in favor of a party who has ■not fully and fairly performed all the conditions of the contract on his part, except when his failure to perform is only partial and either entirely immaterial or capable of being fully compensated. A party seeking specific performance must make some showing of good faith and
Rehearing
On Petition for Rehearing (Filed June 22, 1917).
The motion for a rehearing is grossly erroneous in assuming that the court is under obligations to consider and decide every point or any point, except the turning points in the case. Regardless of any question concerning the statutory cancelation of the contract, the decision clearly shows that the defendant has done nothing to comply with the contract, and he has no equity on which to claim specific performance. On that point the decision is against the defendant, and it is a cancelation of his contract as effectually as if it declared the contract null and void. The law respects form less than substance. The court has always had power to cancel contracts for the sale of land, and the method of cancelation provided by statute is merely cumulative and concurrent; and in this case, to make assurance doubly sure, the plaintiff has effectually resorted to both methods. While the written notice of cancelation appears to have been in compliance with the statute, yet in this case there was no occasion for any such notice. Rehearing denied.
