14 S.D. 600 | S.D. | 1901
This is an action to quiet title to and recover the possession of certain real estate situated in Yankton county, together with the value of the rents, profits, and issues of said land during the time the same has been occupied and possessed by the defendant, which are alleged to be of the value of $100 per anum.
It will be observed from the foregoing statement that time was made the essence of the contract; that the installment due September 1, 1891, was not paid or tendered; that in December the plaitiff declared the contract forfeited, and in January, 1892, instituted an action to recover possession of the premises under the forcible detainer act; that in September, 1892, the defendant offered to pay the full amount due under his contract both principal and interest, and, plaintiff refusing to accept the same, the money was deposited in a national bank of good repute, and notice thereof given to the plaintiff. It will also be observed that by the terms of the contract on failure of the performance of the covenants on the part of the defendant the contract was not, ipso facto, terminated, but that plaintiff had the right to declare the contract void without notice to the defendant, and that the contract provides that the defendant shall not only pay interest until due, but interest on all sums, whether principal or interest after due.
It is contended: (1) That the action is one to enforce a penalty or forfeiture, and that no such action can be maintained under the provisions of Sections 4622 and 4623 of our Code. Those sections read as follows : “Preventive relief is given by prohibiting a party from doing that which ought not to be done.” Section 4622, Comp. Laws. “Neither specific nor preventive relief can be granted to
It is further contended on the part of the defendant that inasmuch as the plaintiff failed for a period of three months and over to declare a forfeiture of the contract for the failure to pay the installment due September 1, 1891, the plaintiff waived the forfeiture. It is further insisted on the part of the defendant that the stipulation that time should be the essence of the contract applied as well to the plaintiff as to the defendant. In this contention we are of the opinion that the defendant is correct. Under the terms of the contract, the plaintiff was undoubtedly authorized to declare the contract terminated for the failure of the defendant to pay the stipulated sum on September 1, 1891 — the time specified in the contract — had he promptly exercised his right to so terminate the contract. But, as we have seen, he did not exercise that right, nor atttempt to do so, until December of that year, and as late as the 8th of December entertained a proposition on the part of the defendant for an exten