143 N.W. 288 | S.D. | 1913
Appeal from an order overruling defendant’s •general demurrer to the amended complaint. The amended complaint is as follows : “ (1) That at all times hereinafter mentioned the defendant, Peter Ommen, was and now is a resident of the county of Brule and state of South Dakota, and owner in fee of the following described real estate, to-wit: The southeast quarter of section one (1) in township one hundred five (105) north, of range seventy-one (71) west of the 5th P. M., and the south half (S. %) of the northwest quarter (N. -W. of section seven (7) in township one hundred five (103) north, of range seventy (70) west of the 5th P. M. (2) That on or about the 13th day ■of November, X911, the plaintiff and defendant herein entered into a written agreement, whereby the said defendant agreed to sell and convey to this plaintiff the above-described land, a copy of which said written agreement is hereto attached, marked ‘Ex"hibit A,’ and made a part hereof, the same as if at length and •fully herein set forth. (3) That on or about the 14th day of .November, 1911, the said Peter Ommen made, executed, and •caused to be delivered to one Peter Johnson his certain written order, whereby the said Peter Ommen requested and directed this
Exhibit A, made a part of the complaint, is as follows:
“This agreement made and entered into this 13th day of November, 1911, by and between Peter Ommen, of Chamberlain, South Dakota, party of the first part, and George W. Sturtz, of Sioux City, Iowa, party of the second part, witnesseth: That said first party has this clay sold and agrees to convey by good and sufficient warranty deed the southeast quarter of section one (1), township one hundred five (105) range seventy-one (71) and the -south half and the northwest quarter of section seven (7), township one hundred five (105), range seventy (70), all in Brule county, South Dakota, and to furnish abstract showing good and merchantable title to said land, and same to be free and clear of all liens and incumbrances. Eor and in consideration of said land, said George W. Sturtz hereby sells and agrees to convey to said Peter Ommen lots one (1) to thirty-five, inclusive, in block one (1), Davelaars subdivision of lots nine (9) and ten (10), and lots seven (7), Sunnyside -addition to Sioux City, Iowa, and lot twelve (12) in block five (5), Davis addition to Sioux City,
*402 Iowa,, and the middle fifty (50) feet of lots one (1) and two (2) in block eleven (11), Davis addition to Sioux City, Iowa, as full and complete payment for said land above described, except a loan of $2,100.00 now on first described property 'in Sunnyside ■addition, which said Peter Ommen assumes and agrees to pay; there being a cash difference, however of $540.00 coming- to said Peter Ommen, which said Sturtz is to pay him in cash at the time of closing the deal. Peter Ommen is to have an- extension of said $2,100.00 mortgage, for at least five years. This contract is binding on both parties hereto, except that said Sturtz has five days from this date in which to look at said land, and, in case he is suited with it, this deal is final and closed. Both parties to furnish abstracts showing merchantable title, and deeds to be passed, and deal closed within sixty days from this date. Possession to be given by both parties on or before March 1st, 1912. [Signed]Peter Ommen. [Signed] George W. Sturtz.
‘T George W. Sturtz, have this day inspected the 632 acres of land described in above contract, and have accepted same, and said Peter Ommen hereby acknowledges such acceptance, and this contract is now in full force and effect. [Signed] George W. Sturtz. [Signed] Peter Ommen.”
The grounds of insufficiency of the complaint claimed by appellant are as follows: (1) That it does not allege title in the plaintiff of the property plaintiff is to convey. (2) That it does not allege title in defendant of the property defendant is to convey. (3) That it does not allege performance or tender on the part of plaintiff; (a) because no time of tender of abstract and deeds is alleged; (b) because there is no allegation of time of tender of the $40, and, if tendered' after the 60-day period, then interest on the $40 should be tendered; (c) because there is no allegation of payment or tender of the accrued interest on the $2,100 mortgage; (d) because there is no allegation that the mortgage was extended to run five years-; and (e) because there is no allegation of tender of possession of the premises. (4) That it does not show upon the face of the complaint that the contract sought to be specially enforced is just and reasonable, and the consideration adequate.
Finding no error in the record, the order appealed from is affirmed.