8 S.D. 230 | S.D. | 1896
Emily Southard, the plaintiff, being the owner of a certain lot in the city of Canton, entered into a contract, usually denominated a “bond for a deed,” with the defendant Isabella M. Smith, by which she agreed, upon the payment of $3,000 at the time therein specified, and the performance of certain covenants therein, to convey to her said lot.
The referee, after finding the facts is to the other two lien-foreclosure actions, which were quite similar, except that in
Subsequently the case was referred to the referee for further findings, and thereupon'he made the following additional findings: “(1) I find as a fact that the defendant Isabella M. Smith never performed the conditions of the contract entered into between the plaintiff herein and said Isabella M. Smith, set out in finding No. 1 of the original findings, in this: that said Isabella M. Smith never paid or offered to pay the plaintiff the amount required to be paid by her, under and by virtue of the terms of said contract, nor did said Isabella M. Smith make improvements on the premises as required by said contract. (2) That the only sum ever paid by said Isabella M. Smith, or by any person for her, was the sum of seventeen hundred and
With these preliminary observations as to the law applicable to this case, we proceed to an examination of the pleadings and decree in the case of W. & A. McArthur v. Isabella M. Smith et al, in which Emily Southard, the present plaintiff, was made a party defendant. As before stated, in the complaint in that action it was alleged, in terms, that “the defendant Emily Southard * * * has or claims some interest in the land upon which said building stands, but she has no claim prior or superior to that of the plaintiffs.” She is thus distinctly notified that the plaintiffs claim that their lien is prior or superior to her interest in the land. She was therefore called upon to assert her-paramount title, if she deemed it to be superior to that of the plaintiff’s lien. But she failed to assert such paramount title, or set up her prior title to the property, and to ask for a dismissal of the action as to her, and she failed to even deny that the lien of the plaintiffs was not prior or superior to her interest in fhe }and. But, on the .contrary, she Joined Isa.-