21 S.D. 386 | S.D. | 1907
The plaintiffs instituted this action to have a certain land contract entered into between them and the defendant canceled of record. Findings and judgment being in favor of the plaintiffs, the defendant appeals.
The material parts of the contract which was entered into on the 18th day of July, 1902, are, in substance, that the plaintiffs, as parties of the first part, agreed to convey to the defendant, as party of the second part, certain lands in Buffalo county for the sum of $3,600, $300 of which was paid at the time of entering into the contract, receipt of which was acknowledged, and the balance of $3,300 was to be paid on the 1st day of March, 1903. It was stipulated that time should be of the essence of.the contract, “and that, in case of the failure on the part^of the second party * * * in the performance of all or either of the conyenants and promises on his part to be performed, said party of the first part shall have the right to declare this contract void without notice to party of the second part, * * * and thereon to recover all the interest which. shall have acc.ured upon this contract up to the
On the trial the defendant was called as a witness on his own behalf, but the plaintiff objected to any evidence on the part of the defendant, on the ground that the allegations of the answer were not sufficient to constitute a defense to plaintiff’s cause of action. The evidence was excluded by the court, and judgment on motion rendered in favor of the plaintiffs to which ruling the defendant duly excepted. It is insisted by the plaintiff’s, in support of the ruling and judgment of the trial court, that the answer was insufficient, in that it contained no allegation that the defendant had paid or offered to pay the balance due under the contract or any part thereof, and that the plaintiff’s were not required to tender a deed or demand the balance due under the contract before commencing their action. Both of these propositions are controverted by the appellant who contends that the plaintiffs were not entitled to maintain the action for the reason that they did not allege in their complaint or prove on the trial that they had tendered a deed or demanded payment of the balañde due, and that the plaintiffs at the time the action was commenced had no cause of action, and that the defendant was not required to allege or prove any offer of payment in order to defeat the plaintiffs’ action. We
It will be observed that this action was brought on the equity side of the court, and was in effect for the enforcement of a forfeiture. Such actions are not favored by the courts of equity, and, as a rule, such courts refuse to' enforce a forfeiture. It seems to be well settled that where time is not of the essence of the contract, or where it has been waived, a vendor seeking to enforce at contract must, before the vendee can be held in default, tender a deed and demand payment of any balance that may be due, and a vendee, in like manner, who seeks to place the vendor in default, must tender the money and demand a deed. In the case at bar, as we have seen, the time for the payment of the balance due under the terras of the contract was extended for one year, and, the plaintiffs having waived that stipulation, it would be manifestly unjust and inequitable to permit the plaintiffs more than two months after the time as extended had expired to institute an action, and, in effect, enforce the forfeiture, without tendering a deed and de
The judgment of the circuit court is reversed, and that court is ordered to enter judgment dismissing the complaint.