This action was commenced in September, 1883, by Andrew Stevenson, and the petition states that lie sold to the defendant Polk, in July, 1881, certain described real estate for $7,850, of which sum $1,200 was paid, and that the'said defendant agreed to pay the residue of the purchase money on the first day of March, 1882, with eight per
The defendant Polk filed a separate answer, denying that he entered into-possession of the real estate; but he admitted that he, as trustee for the Union Land Company, had purchased such real estate under a written contract, and that said Stevenson well knew that said contract was made by him as such trustee, and not in his individual capacity. The conveyance to the Union Land Company was admitted, but Polk alleged that the same was done in order to dischai’ge and relieve him of the trust; and he asked that the action be dismissed.
The land company answered the petition, and denied all allegations not admitted, and alleged that said Polk, as its trustee and -agent, purchased of the intestate certain described
The administrator filed a replication, and denied that Polk purchased the land as trustee for his co-defendant, and pleaded that the title was perfect in every respect in the intestate, except a mortgage, which had been paid; and that the intestate and his grantors have had actual, open, notorious and peaceable possession of the premises for more than ten years; and all affirmative allegations in the cross-petition were denied.
There is a discrepancy in the land as described in the petition and the answer and contract. As to this, it was pleaded in the replication that a mistake had been made in describing the land in the contract, and it was asked that the same be reformed so as to conform to the intention of the parties.
The widow and heiys at law of the intestate intervened, and were made plaintiffs, and adopted the prior pleadings filed by the intestate and administrator, and asked the same relief.
The defendants, in a subsequent pleading, denied that there was any mistake in describing the laud purchased in the contract, and denied that the intervenors were the widow and heirs at law of the intestate. There were two amendments to the petition filed, which demanded the same relief as the petition. Substantially the allegations therein were denied.
The foregoing lengthy statement is deemed necessary to present, in a general way, the issues. The contention of the several parties will now be referred to in the order, or nearly so, as presented by counsel.
“Des Moines, July 23, 1881.
“Know all men by these presents that I acknowledge myself indebted to Andrew Stevenson in the sum of six thousand six hundred and fifty dollars, ($6,650,) which I agree to pay the said Stevenson o'n or before March 1, 1882, oh condition that the said Stevenson and wife shall fully comply with their title bond of even date herewith, wherein they agree to convey to me certain real estate lying and being in Marion county, Iowa. This obligation to draw interest at the rate of eight per cent per annum after maturity, provided that the Said Stevenson and wife shall comply with their title bond aforesaid. In witness whereof I have hereunto ,set my hand the day and date first above written.
“J. S. Polk, Trustee.”
The bond referred to was executed by the intestate and his wife at the same time as the foregoing, and recites that they are held and firmly bound, in a named penal sum of money, unto J. S. Polk; trustee, and it recites that the intestate and his wife have sold unto the said J. S. Polk certain described land, and contains this provision: “Apd if the above-bound Andrew and Maria Stevenson shall make, execute and deliver or cause to be made, executed and delivered, a good and sufficient warranty deed and abstract in fee-simple title to the above-described real estate, then this obligation shall be null and void, otherwise to remain in full force, both in law and equity; * * * and it is hereby further expressly agreed by and between said parties * * * that, the party of the second part shall have the right to enter on said land, and make changes and improvements as he may deem best for his interests.”
It is provided by statute that where the vendor of real estate has given a bond to convey the same on the payment of money, he may “file his petition, asking the court to require the purchaser to perform his contract, or foreclose
Appellants cite and rely on School District No. 2 v. Rogers, 8 Iowa, 316, and Berryhill v. Byington, 10 Id., 223. These were actions at law, and in such actions a different rule prevails.
The appellants claim, however, that it is always admissible to show by parol, where a person signs his name to an
Some objections are made to the legality of the foreclosure proceeding against Yink, but, clearly, they do not present any valid reasons why the judgment should be held to be void in a collateral attack thereon’. There are also objections to other judgments or decrees in actions brought by the plaintiffs to cure certain defects of like character to those heretofore stated, to which the rules heretofore stated fully, in our opinion, apply. We deem it unnecessary to more particularly refer to them.
It also appears that by some contract with the railroad ■ company the land company had the right to locate stations, and this right had been exercised, and a station located on the land described in the contract. A railroad had been constructed over the premises, and the track laid down. This; was a permanent structure. The right of way was conveyed by the intestate without any other consideration than that it constituted a part of the sale and purchase. It is therefore apparent that, when the offer to rescind was made, it was inequitable and unjust to compel the plaintiff to take the land back. There had been part performance on the part of the plaintiff by the conveyance of the right of way, or, if this be not true, there was no offer to remove the cloud caused by the conveyance to the land company. It is fundamental that, before a contract can be rescinded by one party, he must place the other party in the same position he was at the time the contract was made, or the power to do so must at least exist. Burge v. Cedar Rapids & M. R. R. Co., 32 Iowa, 101 ; Montgomery v. Gibbs, 40 Id., 652. Many other authorities might be cited in support of the foregoing proposition.
XIII. The defendants being in the undisturbed possession of the premises, with the right expressly given in the title bond to “make changes and improvements” as they saw proper, and having failed to show a right to rescind, or that they have been substantially damaged, should comply with the contract; and therefore the plaintiffs are.entitled to judgment for the ¡mrchase money, with interest as specified therein.
The judgment of the district court is in all respects
Affirmed.