191 N.W. 462 | N.D. | 1922
This is an action for specific performance against a vendee in a contract for a deed. The complaint alleges the making of the contract between the parties on August 9th, 1919, for 160 acres of land whereby defendant paid $1,000 cash, assumed a mortgage for $1,800, and agreed to pay $2,000 on or before Sept. 20th, 1920; the failure of defendant to make such payment of $2,000; the tender to defendant of a warranty deed of the land, pursuant to the contract; and the readiness and ability of the plaintiff to perform; specific performance is demanded and the recovery from defendant of $2,000.
The answer admits the making of the contract, but denies plaintiff’s ownership in the land. It alleges a mistake in the description of the land due to the scrivener’s error. As a defense, it alleges that plaintiff falsely represented to defendant that tire land was located not more than I miles from the farm then owned and occupied by defendant; that the defendant, relying upon such representation, purchased the land; that the land, in truth, is located more than 10 miles from defendant’s land. This defense is also set up as a counterclaim wherein defendant seeks to recover $1,000 paid upon the purchase price of such land. In his reply, plaintiff admits the mistake in description and alleges that the same was made through a mutual mistake. The affirmative defense and counterclaim are denied.
The facts are: Plaintiff is a real estate agent. Defendant is aged fifty-three years and has been a farmer throughout his life. He owned and operated a farm in South Dakota which he sold. Pursuant to correspondence had with his brother-in-law, Peniston, defendant came to Ilichland county, North Dakota, in August, 1919. Peniston was plaintiff’s agent in selling land. Plaintiff, defendant, and Peniston examined the east half of section 11 in township 132, range 52, and the east half of section I, township 133, range 52. Through plaintiff ho purchased the east half of section 11 for a consideration of $120 per acre, and the east half of said section 7. Two contracts for a deed were made for said land in section 1: One, covering the northeast quarter thereof, is the contract involved herein. The other contract, by reason of plaintiff’s inability to secure the land, pursuant to the contract, was surrendered and the same annulled. Defendant bought
Tbe trial court found that defendant knew be was buying tbe northeast quarter of section 7 in a congressional township north of tbe township wherein bis farm in section 11 was situated", that tbe evidence was insufficient to establish any false representations for tbe reason that defendant knew it was a physical impossibility for any such representations to be true. Tbe court awarded a reformation of tbe contract and speciic performance thereof. Pursuant thereto judgment of specific performance was rendered including tbe right to recover tbe unpaid purchase price with interest. Defendant has appealed from the judgment and has demanded a trial de novo.
Defendant contends that this is an action to cancel or terminate tbe contract and, as such, cannot be used as a basis for specific performance. That defendant was induced to make the contract through misrepresentations as to the distance to the land from his other land; that the land was grossly -overvalued and therefore it -is inequitable -to enforce specific performance; that the plaintiff agreed to convey a quarter section of land all of which he never owned by reason of a right of way reservation upon the land.
Decision.
The action is plainly an action for specific performance to enforce, not to cancel, the contract. There is neither pleading nor proof of any misrepresentation concerning the value of the land. In the change of title there appears a deed from the N. P. Ry. Company to the Johnston Land Company conveying the quarter involved together with other lands wherein a reservation of 7.97 acres is made of a strip of land 100 feet wide from the center line of the “Soo” Railway line as now located. Manifestly, this reservation does not concern this land as the right of way' of the railroad does not cross section 7. Following section lines, as a road, from the nearest corner of the east half of section 11 to the east half of section 7, the distance is about 9 miles. Applying a simple formula of mathematics to secure the diagonial distance, a result is obtained of about 6.4 miles. Traversing the distance along the road paralleling the railroad the distance is apparently about 8 miles. From