189 Iowa 1076 | Iowa | 1920
This is an action for a decree of specific performance of a written contract to convey land. The facts upon which the right to a specific performance is based, are substantially as follows:
“It is further understood and agreed that the party of the second part [Mineah] shall pay all taxes and assessments now due or which-may hereafter be assessed against the property, with the further statement that the premises are free and clear from all liens, incumbrances except the taxes for 1907.”
This contract was assigned in writing to the defendant Robinson on the 22d day of March, 1912, for a consideration of $5,500. This was the condition of defendant’s title at
. “Lessee [being the plaintiff] shall have the option and privilege of purchasing said lots at the price of $8,000 pn. the 1st day of. July, 1918, at which time should he exercise the option to purchase the lease shall terminate.”
The plaintiff entered into the possession of the premises, and made valuable improvements upon the. same, and paid all the rents required of him to be paid under said lease until the 1st day of July, 1918. On that day, he notified the defendant in writing that he had elected to accept and exercise the option .and privilege given him in the lease, and.offered..and tendered.to the defendant the $8,0,00 stipulated, therein. This was refused by the.defendant, and this action is brought to require him to specifically perform, and convey the land to the plaintiff, for the .said sum of $8,000.
AjEter the making of said lease, and on the 23d day of September, 1915, Carney conveyed, to. .the defendant the property in question by warranty deed, the. consideration named- being $6,000.. This was made in fulfillment of the cojntract hereinbefore referred to, entered into between. Carney and Mineali, and assigned to the defendant. In this deed it ivas provided “that the same is sold subject to all taxes and assessments which may be a lien against the property,” all of which the..pur chaser, Eobinson, assumed, and agreed to pay. It appears that, between the making of said lease and acceptance of- the option, street pavements were put in, sewers, constructed, and sidewalks built by the city of Marshalltoivn on streets adjoining these lots, and the lots were duly assessed for benefits on account, thereof made, as follows: October 26, 1916, for the sewer, approximately $56p, part of which has been paid by Eobinson since that date; for paving on Eailroad Street adjoin
. We do not deem it of any importance in the disposition of this case that Robinson made no objection to the improvements. It is not shown that there ivas any ground
“However strong, clear, and emphatic the language of the contract, however plain the right a.t law, if a specific performance would, for any reason, cause a result harsh, inequitable, or contrary to good conscience, the court should refuse such a decree, and leave the parties to their remedy at law.”
We have nothing in this record that would justify us in saying that, when the parties entered into this lease, with this optional stipulation in it, on which the plaintiff rests-his claim to the land, either party understood or foresaw that, within the five-year limitation for accexitance, these improvements, or any improvements of a character such as those involved here, would be made, to the great advantage and improvement of the property which was the subject of the contract. We do not think that it was in contemplation of the parties that, so far as public improvements of this character are concerned, these improvements would be made during that period of time, and before the expiration of the option, and we do not believe that the parties, in contracting, one to buy and the other to sell, at the stipulated sum, on the date when the option should be exercised, had in contemplation that the properly itself would be permanently improved or enhanced in value.
We do not feel that we can add anything to what has been heretofore said by this court on this same question in King v. Raab, 123 Iowa 632, and Cornelius v. Kromminga, 179 Iowa 712; nor do we find anything in the facts of this case that distinguishes it from the basic facts in those cases, or that would justify us in applying any other rule than that applied there to the rights of the parties litigant. In Cornelius v. Kromminga, supra, this court said, referring to a state of facts very much like the ones here:
*1085 “Nothing is taken from the defendant [the purchaser]; the value of his property is not only undiminished, but it is presumably increased to the full amount of the assessment against it; and we think there is no sound principle of laAv or equity which Avill permit him to shift the natural and proper cost of this increment upon the plaintiff [the seller].”
See, also, Larson v. Smith, 174 Iowa 619.
We think, therefore, that the decree of the court Avas rightly for the plaintiff, but that the title given in fulfillment of the option should be subject to all the liens made for improvements undischarged and existing at the time the acceptance Avas made. The deed made by the defendant in tender is a waiver of any claim made for assessments heretofore paid by the defendant. The plaintiff, therefore, should take the land subject to all the unpaid special assessments made for paving, sidewalks, and sewers, as disclosed in this record. The case is, therefore, reversed, and decree ordered in accordance >Arith our holding here. Plaintiff may have a decree in this court, if he so elect. — Reversed.