165 N.W. 536 | S.D. | 1917
The plaintiff by its complaint in substance alleged: That on the 2nd day of May, 1910, under and by virtue of the laws of the state of South Dakota relative to the sale of school lands, it entered into certain cotmracts of sale, by and through its commissioner of school and public lands, whereby, under certain conditions, it agreed to> sell and convey title to defendant to 640 agres of school lands situated in Sully county for the aggregate sum of $19,360. That the said contracts contained the condition that if the purchaser, the defendant, or his legal representatives, shall pay to the treasurer of 'Sully county the sum of $4,840, being one-fourth of the aggregate amount of said purchase price, at or before the execution of said1 contracts, and also pay one-third of the remaining three-fourths thereof in 5 years, one-third in 10 years, and the other one-third, in 15 years, from the 2d day of May, 1910, with interest at the rate of 6 per cent, per annum annually in advance on the 1st day of January of each year, until the entire amount of said purchase money, and interest at the rate of 7 per cent, per annum upon all unpaid interest, shall have been paid, and shall also pay all taxes which may be levied upon said lands, as the same shall become due, then, and in that event only, will the said- purchaser or his legal representatives be entitled to a patent for said lands. The said contracts also contained the provision that in case of the nonpayment of -the purchase money, -or -the interest’ aforesaid as it shall become due, or in case of the violation of any of the provisions of said contracts by the saidi purchaser of said land, or any person claiming under him, the commissioner of school and public lands shall cause proceeding's to be instituted in the proper court to set aside the said sale. That the said contracts were duly approved by the Governor of the state, and a duplicate thereof duly delivered to said purchaser as required by law. That prior •to’the execution of said contract the said purchaser paid on the purchase price of said land the sum -of $4,840, and has since also paid the interest for the years 1910, 1911, and 1912, amounting’ to $2,483.20. That no -other payments -have been made upon said
To such complaint the defendant demurred upon the followign grounds: (1) That said complaint does not state facts sufficient to constitute a cause of action against this defendant; (2) that said action purports to be one to rescind a contract, and the complaint shows upon its face that the defendant has made payments of money under the terms thereof from time to time, and that the plaintiff does not offer to restore and has not offered- to return or restore the same, and does not plead the desire 01-attempt to place the parties in statu q.uo; (3) that said complaint, or action, is based upon several contracts, each of which is a separate cause of action and should be separately stated, and that there is a distinct misjoinder of actions. The demurrer having been overruled, defendant appeals.
The order appealed from is affirmed.