138 N.W. 18 | S.D. | 1912
Appeal from the circuit court of Custer county. Action for specific performance of a contract for -the sale of real property and to recover damages. Trial to the court. Findings and judgment in favor of plaintiff. Defendant appeals from the judgment and from an order overruling motion for >a new trial.
The following portions of the written contract are material to-the questions presented on this appeal: “Witnesseth: That the party of the first part (Smith) for the consideration of $500.00 to him in hand paid, hereby agrees to sell to, deliver and convey to the party of the second part (Johnson) his assigns or heirs, a warranty deed, duly signed and executed, upon full settlement of the full purchase price, being $9,600 less $500.00, the following-described premises, to-wit: Northeast of section 30, south % of the northwest 'the southwest % and west y2 of the southeast )4, all in section 30, township 5, south of range 8, east B. H. M. containing 480 acres, more or less according to the government survey. Also 80 acres of water right desert filing, with water right" of same, and one. water right made to Harry M. Sprague. And the second party hereby agrees to pay in cash or by accepted mortgage said purchase price to the party of the first part on or before May 1st, -A. D. 1910.” The motion for a new trial and the assignments of error question -the sufficiency of the evidence to sustain certain of the findings and -the competency of the evidence upon which these findings are -based. The findings in question are numbered 5, 6, 7, 11, and 14.
“(5) That by the words 'accepted mortgage/ used in said agreement, "defendant and plaintiff meant that defendant could assume "the mortgage as mentioned above in paragraph 2, and pay the balance in cash.
“(6) That, if defendant did not choose to assume said mortgage, the same should be paid out of tire purchase price.
“(7) That by the terms of the said agreement the plaintiff was to transfer the real estate particularly described therein by warranty deed, and was to transfer the desert filing and the water right filings mentioned therein by such instruments of conveyance or assignment as is usual in the transferring or .assigning of such interests. * * *.
“(11) That plaintiff has at all times since the execution of said agreement, and now is, ready and willing, and able, to perform said agreement on his part. * * *
“(14) That real estate described in paragraph one (1) was at the time of the execution of said agreement, and now is, of the reasonable value of ten thousand dollars ($10,000). That the desert filing and the water right filings mentioned in said agreement were of trifling value.”
In the application of these elementary rules to the case before us, the first question is whether the language used is clear, and leaves no doubt as to the meaning and intent of the parties. By the contract the grantee agrees to pay for the land in “cash or by accepted mortgage.” It is to be assumed from the contract that the plaintiff intended to sell, and the defendant intended to buy, the^ lands 'described, and that defendant intended to pay for •the lands in some manner. The contract says, “in cash or by accepted mortgage.” What did the parties mean- or intend when they used the words “accepted mortgage”? Was it intended that the grantee might pay the whole purchase -price of the land by giving the vendor a mortgage upon the land? Was it the intention that the vendee might pay part of the purchase price in. cash and the balance by mortgage? Was it the intention of the parties that the vendee might pay the whole purchase price in mortgage securities if accepted by the vendor in lieu of, cash? It is obvious that the meaning and intent of the parties as expressed in the words “accepted mortgage” is not clear, and cannot be ascertained with any reasonable certainty by a construction of the language used.
(3) The next question is whether the evidence received in connection with the words used in the contract is sufficient to- sustain the finding of the trial court as to the intention of the parties. The evidence tends to show, and the court found in the second 'finding of fact, that on March 7, 1910, when the contract was entered into, there was a mortgage on the land on which there was due $4,875, with interest at 7 per cent, from March 1, 1910. The plaintiff testified, in substance, that at the time the contract was entered into he had a conversation with defendant, Johnson, about this mortgage, in which he told Johnson that, if he did not want to pay all the money on the land, he could assume the mortgage and let the sum run; and that the words “accepted mortgage” had reference to this mortgage. Defendant in hie testimony admitted this conversation and understanding. The court in findings 5 and 6 found that by the words, “accepted mortgage,” both parties understood and meant that the defendant might assume the mortgage then on the land, and pay the 'balance in cash, or pay the- entire purchase price in cash out of which the mortgage should be paid in full, giving the purchaser a clear title. In finding No. 7 the court found that it was the intent of the parties to transfer the desert land filing, and the two water right filings, by such instruments of conveyance or assignment as were usual in transferring or assigning such interests. We are of opinion this interpretation of the contract is correct. Findings Nos.' 8 and 9 show the instruments of conveyance and assignments which were tendered as conveyances of the desert filing and water rights, and as a conclusion of law the court finds that the plaintiff performed all the requirements of the agreement
The real question urged by appellant is whether the words, “more or less,” should be- held to relate to variations of quantity which occur in sections or to variations in quantity which jo-cur in lot's. We -have already held that the description by sectional subdivisions in the contract is sufficient to identify the land as the same land described as lots in the deed tendered by plaintiff in the performance of the contract. The last contention, however, presents a different question; and that is whether at the time of entering into the contract it was understood by the parties that the land described in the contract in fact embraced lots, and not sectional subdivisions. No other rule for the solution of this question occurs to us than -such as may be found in the application of the rule as to the burden of proof. The burden of proof
The court may take judicial notice that under the system of government surveys each sectional subdivision, except those which adjoin the north and west township lines, is presumed theoretically to contain the quantity of land called for by the description, and that lands adjacent to said township lines described as lots may, in fact, vary greatly in quantity. But this rule has no; application to parties to a private contract for the sale of lands, where knowledge of the actual facts must be shown to enable the court to apply the proper rule of construction to' ascertain the intent of the parties. We think, however, the court may take judicial notice of material facts connected with the subject-matter of the contract, and should, therefore, construe the contract upon the assumption that both parties were ignorant of the fact that the property described in the contract consisted of lots, and not the usual sectional 'subdivision's. It follows that we should assume both parties intended to risk only such variation of quantity as might occur in sectional subdivisions, and not the variation of quantity which occurs in lots. It then becomes necessary to consider whether a deficiency of 30.87 acres in the total of 480 acres is greater than was within the contemplation; of the parties, when each assumed the risk more or less than 480 acres :by the contract. It will be observed that the contract price of the land'averaged $20 per acre, and this deficiency in quantity would represent a deficiency in value of substantially $600. Had the - description in the contract been by lots, it' might be presumed that the parties in
Respondent’s counsel in his brief concedes that legal interest on the purchase price of the land to the date of the judgment and decree' amounts only to> $375-58. The court found that “the plaintiff has sustained damages 'by reason of the defendant’s failure to perform said agreement in the sum of at least one thousand dollars ($1,000), with interest on the purchase price from May 1, A. D. 1910, the date when said money should have been, paid, will not reimburse plaintiff for his damages by seven hundred and fifty dollars ($750),” while 'the judgment and decree of the court is “that plaintiff have and recover of defendant the sum of five hundred dollars ($500) for his damages in this action.’ Whatever meaning ■ may attach to this finding, it is clear that the judgment is for a recovery of damages in excess of the amount of legal interest on the purchase price of the land, and it is clear that the court erred in -both the finding of -fact and the judgment.
The cause is remanded for further proceedings in accordance with the views expressed in this opinion. "