166 N.W. 161 | S.D. | 1918
Lead Opinion
This action was instituted to have the title to certain lands 'quieted in plaintiff and for a decree in ejectment •against defendant, and also to recover the sum of' $2,000 as rents and profits for the use of said land. The answer alleged that plaintiff, being the owner of the legal -title, entered into an agreement with -defendant whereby the defendant was to purchase a one-half interest in said land, and that at the time of -entering into -said agreement tlhe defendant paid to plaintiff $1,000 in cash, and executed a note for the sum of $3,850 payable to plaintiff, and- that the plaintiff then and there executed a deed to the defendant for an undivided one-half interest in said land, and which note and deed were then placed in escrow in the Meade County Bank of Sturgis; that defendant by the terms of said agreement was to have the management of said real estate-; and that the proceeds of -said property should be divided between the plaintiff and
It appears from the evidence that on the ist clay of April, 19to, the plaintiff was the owner in fee of the legal title of said lands, and on that date entered into- an agreement with defendant whereby he agreed to sell an undivided one-half interest therein to defendant for the sum of $4,850, and -that defendant then .and there paid $1,000 of said purchase price, and that a note for $3.850, according- to the terms thereof payable on or before two years from the said date with interest at the rate of 8 per cent, per annum, was then and there executed by defendant and placed in the custody of the Meade County Bank, tog-ether with a deed executed by the plaintiff to defendant as grantee of an undivided 'One-half interest in said land; and along with said deed and note was a written memorandum which, among other things, stated that said bank .should hold said deed and note, and that said bank should) deliver and turn over sail'd deed to the defendant upon his payment of said note, and which memorandum was executed and signed by plaintiff and said1 bank. It further appears from the evidence -that immediately upon the entering- into of said contract the defendant entered into the possession of said real estate, which consisted of about one section of farm- and pasture lands, and has ever since been in the use and occupation thereof; that no payments have ever been made by the defendant upon said note; that whatever -proceeds -have been derived from -said farm 'have been appropriated and kept by defendant; that said defendant m-acl-e -some improvements upon- said land; and that plaintiff from -time to time assisted in improving $aid lands.
The trial court made findings'substantially as follows: That •■on the ist -day of April, T910, at all times thereafter, and at -this time, the plaintiff is the owner of 'the legal title in fee of the whole of said -lands in question-; that -the clefen-ciaii-t has no right, title, car interest or lien or incumbrance upon said real ■property; that defendant is now in possession of said premises and has been in possession, thereof since April, 1910; that he entered into'possession -thereof by virtue of an option contract to purchase
Costs -on this -appeal shall be -taxed by the clerk of this court in favor of respondent, 'but in case appellant complies -with and fully performs1 ail the 'conditions of said contract by -paving all principal and interest due -thereon, then- the costs taxed in this court shall be thereby vacated and extinguished, as well as all
The order, denying a new trial is affirmed. The cause is remanded with directions to modify the judgment appealed from in such manner as is indicated by this opinion, and so modified: it is affirmed; that is, in case appellant makes default in complying with said contract then the judgment appealed from is affirmed in whole; but in case appellant complies with said contract then the judgment appealed from is vacated and set aside, excepting the money judgment .portion thereof for the value of the use of other lands not mentioned in said contract.
Concurrence Opinion
(concurring specially). While I concur fully in the construction which the majority have placed upon the contract entered into 'by the parties' hereto, as well as in the holding that foreclosure under chapter 138, Laws 1913, is the proper remedy, I am unable to agree in full with what my colleagues have held. The trial court, construing the contract as a mere option that was forfeited by failure to pay the note when due, held that, from time of such forfeiture, appellant was liable for the -reasonable value of the use of the premises, and was entitled to credit for the payment he had made and for the value of the improvements he had placed upon -the premises. Without determining whether, if this had been an option contract, the trial court’s adjustment of credits would have been right, we need only consider w'hat were the rights of the parties under this contract — it is their rights and obligations thereunder, both in case of performance by appellant and in case of nonperformance, that we must determine.
Inasmuch as this contract related to but a half’ interest in the land covered thereby, .appellant, in any case, is liable for one-half .the value of the use and occupation of such land, and entitled to be credited with one-half the value of improvements ■placed thereon by him. A's to these' matters the contract for sale and -purchase has no relation whatsoever.
But as to the half interest contracted to be sold and purchased, the rights of these parties should be exactly what they would be under any ordinary contract of sale and purchase under
If I am correct in the above, it follows that my colleagues are in error in holding that, in case appellant fails to make payment within the time fixed therefor, the judgment of the trial court should be affirmed. Such judgment, so far as it relates to the rights and liabilities under 'the contract, is fundamentally wrong, being based upon an entirely erroneous theory of the contractual rights of these parties.
The judgment of the trial court should be reversed, with costs in favor of appellant. The trial court should be directed to determine the amount due under -the contract, which is the amount of the note and interest, to decree strict foreclosure unless payment is made within time fixed, and to decree that, in case of failure to make payment within such time, appellant be foreclosed: ,as to all rights in sueh land. As regards the other half interest in the land covered by the contract for sale, as well as the other lands, the finding's and conclusion's of the trial court should be affirmed, except that the charge of $2,100 should be $1,050, the credit of $1,000 should be eliminated, and the credit of $568.92 changed to $284.46.