178 N.W. 929 | S.D. | 1920
Plaintiffs brought this action to bar and foreclose all the right, title, interest, and equities of the defendant Logan in and to certain lands situated in Spink county, under and by virtue of a written contract for a deed between plaintiffs and said defendant. There was no answer by defendant. Anderson, as an intervener alleged that after the commencement of this action the defendant Logan, in writing, for a valuable consideration, assigned and transferred to him all her right, title, and interest in and to said contract for deed, and that he as such assignee had tendered to plaintiffs all sums due under said contract, which plaintiffs refused to receive or accept, and prayed that plaintiffs be compelled to execute and deliver to him a warranty deed of said land. Plaintiffs, by answer to the complaint in intervention, denied that the defendant Logan ever made, executed, or delivered any assignment of said contract for
The trial court, among others, made a finding to the effect that on the 17th day of 'March, 1916, defendant Logan, for a valuable consideration, turned over to the Emmet County Bank, Armstrong, Iowa, a written assignment of her contract with the plaintff to the intervener, Anderson, conveying to him all her right, title, and interest in and to said contract, which assignment bore date the 19th day of October, 19115, with instructions to said bank to deliver the same to said intervener, and that on the 27th day of March, 1916, the bank, as agent for said defendant Logan, turned oved and delivered said assignment to the intervener, who has ever since been the owner and holder thereof. Appellants question the sufficiency of the evidence to sustain this finding. We are of the opinion that appellants are right in this contention. The record is voluminous, but, stripped of immaterial matter the salient facts are these:
About the 1st of September, 19x3,. Mrs,- Logan was the owner of the laud in question, which was about to be sold to satisfy incumbrances. At that time appellants furnished her money necessary to redeem, took a deed of title from her and gave her back a contract for deed, agreeing to reconvey the land to, her when she had made to plaintiffs the payments specified therein. Mrs. Logan defaulted in said payments, and this action was instituted in -January, 1916, to foreclose her equity. Prior to appearance in said action by said defendant, on the 24th day of March, 1916, she and the appellants made a settlement by virtue of -which appellants paid to her the sum of $1,200 for her equity then remaining in said land under said contract, and she, .in consideration of said payment, quitclaimed and- assigned all her interest in said contract for deed to appellants. In 1915 Mrs. Logan had made a written assignment in -blank of said contract for deed,
At the time of the execution of this contract Maas was at Armstrong, and delivered to the bank the assignment of the contract for deed that had been delivered to ‘him as security for a loan in October, 1915, and at the time of so delivering the same Maas inserted in the blank the name of H. C. Anderson, as assignee. On the 24th day of March, 1916, at the time appellants purchased the equity from Mrs. Logan, Maas notified the bank at Armstrong to return all papers left with the bank between Logan and Anderson, and the next day mailed letters to the Emmet County Land Company to the same effect, notifying them that Mrs. Logan refused to carry out said contract with Anderson. 'Several days thereafter the bank of Armstrong delivered said assignment of contract for deed, made in October, 1915, to ‘Anderson, who thereafter tendered a deed to the town lot in Armstrong to Mrs. Logan, reciting that the grantee assumed and agreed to pay the $1,500 mortgage indebtedness, and also tendered performance of the contract for deed to appellants, and then, upon the refusal of Mrs. Logan to accept said deed, and the refusal of appelbnts to accept performance of said contract for deed, intervened in this action.
The specific contention of appellants is that the evidence is insufficient to sustain said finding, in that there is no competent
In this connection it is contended by respondent that, the contract being valid, although not authorized in writing, no one other than Mrs. Logan could take advantage of the fact that Maas was not authorized in writing to enter into said contract with intervener. For several reasons this contention is not tenable. The issue of the assignment of said contract for deed in favor of Mrs. Logan, under which respondent claims an interest in the subject-matter of this action, the land, was brought into this action by the complaint in intervention, which alleged that Mrs. Logan for a valuable consideration had assigned her contract for deed to intervener, and which allegation was denied by appellants. The burden on this issue was on intervener to establish by competent evidence a valid contract of 'assignment of said contract for deed as a foundation for any right to relief. There is no question but what the quitclaim deed from Mrs. Logan to appellants of March 24th was a valid instrument, and had the legal effect of placing appellants in her legal shoes, and transferred and assigned to them any and all rights she might have had to question the authority of her alleged agent Maas.
Furthermore, even though the evidence showed full written authority in Maas, and that therefore the assignment was good, and the contract with. Anderson perfectly binding yet 'Anderson
The judgment and order appealed- from are reversed, and the trial court is directed to enter judgment dismissing the complaint; in intervention, with costs.