Bowdle v. Jencks

• Decision Date: 05 April 1904
• Citation: 18 S.D. 80,99 N.W. 98
• Parties: RALPH R. BOWDLE et al., Plaintiff and appellants, v. FRANK S. JENCKS et al., Defendant and respondents.
• Court: South Dakota Supreme Court

18 S.D. 80

99 N.W. 98

RALPH R. BOWDLE et al., Plaintiff and appellants, v. FRANK S. JENCKS et al.,

Defendant and respondents.

South Dakota Supreme Court

Appeal from the Circuit Court, Charles Mix County, SD

Hon. E. G. Smith, Judge.

Reversed

A. E. Hitchcock, Horner & Stewart

Attorneys for appellants.

Clark & Cohenour, R. B. Tripp

Attorneys for respondents.

Opinion filed April 5, 1904

CORSON, P. J.

This action was instituted by the plaintiffs to cancel a certain contract entered into by the plaintiffs, Ralph R. Bowdle and David W. Burright, parties of the first part, and Frank S. Jencks, party of the second part, and also to cancel a certain deed of conveyance, and the record thereof, of property situated in Charles Mix county, in the state of South Dakota, executed by the plaintiffs Bowdle and Burright to the said Jencks, and also a certain deed from said Jencks to the defendant John W. Broadwell of the same property, and that the title of the plaintiff Amanda M. Bowdle to the said property be quieted as to the defendants, and each of them, and as to all persons claiming under them. The facts alleged in the complaint may be briefly stated as follows: On the 24th day of May, 1901, the plaintiffs Bowdle and Burright were the owners in fee and in possession of a tract of land in Charles Mix county containing 720 acres. That on that day Bowdle and Burright entered into an agreement in writing with the defendant Jencks by which they agreed to convey to the said Jencks the said property for the sum of $10,800, and which property said Jencks agreed to purchase and to pay therefor the said sum as follows: The said Jencks to deed to the parties of the first part his hotel property in the town of Ledyard, Iowa, at an agreed valuation of $6,600, to assume a mortgage on the property conveyed by the parties of the first part for $3,500, and to give a mortgage on the said property for $700; the parties of the first part assuming an indebtedness upon the hotel property not to exceed $600. The contract was executed at Ledyard, Iowa, and it was stipulated therein that the exchange of papers was to be made through the State Bank of Ledyard, Ledyard, Iowa. It is further alleged that a deed of conveyance was executed by the plaintiffs Bowdle and Burright of the Charles Mix county property, and deposited with the State Bank of Ledyard, to be delivered to Jencks when he performed the conditions of the contract to be peformed by him, and he had furnished an abstract of title to the hotel and livery barn property, showing the title to the said property to be vested in him free from all incumbrances and liens, save the exceptions noted in said contract, and had delivered the same, together with the deeds of conveyance from said Jencks and wife, to the said Bowdle and Burright, for said hotel property, together with the furniture contained in the hotel; that said defendant Jencks did not at any time prior or since the commencement of this action perform or tender the performance of the conditions of the said contract, in that he did not deliver to said Bowdle and Burright, or the said Bank of Ledyard in their behalf, deeds of conveyance for the said hotel property, including the furniture therein; also in that he did not deliver to the said Bowdle and Burright, or to the said bank in their behalf, an abstract of title, showing the title to the said hotel property in the said Jencks free from all incumbrance, save the sum of $600 assumed by Bowdle and Burright under the terms of the said contract; and also in that he dId not deliver to the said Bowdle and Burright possession of the said hotel property. It was further alleged that on the 9th day of July, 1901, while Bowdle and Burright were in possession of the lands in Charles Mix county, first above mentioned, and while the said Jencks was in possession of the said hotel property, and before the conditions of the said contract to be performed by the said Jencks were performed by him, without any fault on the part of the said Bowdle and Burright, all the improvements on the hotel property were destroyed by fire; that the value of the real property was constituted almost entirely of the said buildings, consisting of the hotel and livery barn; that the lots on which the said buildings were situated, exclusive of the said buildings, were not worth to exceed $400; that, subsequent to the destruction of the said hotel and livery barn by fire as aforesaid, said Bowdle and Burright sold and conveyed the property situated in Charles Mix county, above described, to the plaintiff Amanda M. Bowdle, who is now the owner and in possession of the same; that on or about the 18th day of July, 1901, the said Jencks, without the consent or authority of the said Bowdle and Burright, and without the authority or consent of the said. State Bank of Ledyard, wrongfully and without paying any consideration therefor„ obtained possession of the said deed of conveyance executed by said Bowdle and Burright to the said Jencks, and caused the same to be recorded in the office of the register of deeds in and for the county of Charles Mix, state of South Dakota; that on or about the 18th day of July, 1901, the said Jencks executed and delivered to the defendant John W. Broadwell a deed of conveyance of the said property, which said deed has been recorded in the office of the register of deeds in said Charles Mix county. And the plaintiffs pray for a cancellation of the said deeds and the records thereof as above stated. The defendants deny many of the allegations of the complaint, and set up title of the said Broadwell to the property, and ask that his title may be quieted as against the plaintiffs, to which the plaintiffs served and filed a reply. The case was tried by the court without a jury, and, his findings and conclusions of law being in favor of the defendants, the plaintiffs appealed from the judgment entered therein.

It will be observed that pending the contract, and before the exchange of the deeds, the hotel property and livery barn which were to be transferred by the defendant to the plaintiffs in part payment for the property were destroyed by fire without the fault of either party. The question presented, therefore, is, which of the parties shall sustain the loss?

It is contended by the appellants that, as the principal portion of the property constituting the consideration to be paid by Jencks for the Charles Mix county property was destroyed by fire, the contract was at an end, for the reason that at the time the buildings were consumed the conditions entitling the defendant to a conveyance of the property had not been performed, in that he had not placed with the bank a deed in escrow for the property, including the furniture, and had not completed his abstract of title, showing the fee-simple title to be in him, and all liens satisfied, except the lien for $600 assumed by Bowdle and Burright, or delivered the same to the cashier of the bank at the time of the fire, and for the further reason that Jencks was in possession of the property at the time it was destroyed by the fire, and for the further reason that Jencks could not transfer to Bowdle and Burright the property which it was contemplated by the contract should be transferred at the time the contract was executed. The defendants, on the other hand, contend

[1] that by the terms of the contract the Charles Mix county property was sold and conveyed to the defendant Jencks;

[2] that Jencks was in possession of the Charles Mix county property by reason of an assignment of a lease made and delivered to him by Bowdle and Burright;

[3] that he had possession of the Ledyard hotel property at the time of the fire at the special request of the plaintiffs Bowdle and Burright;

[4] that the liens shown to exist against the property on the defendant’s abstract had been, prior to the fire, satisfied of record;

[5] that under and by virtue of the statutes and decisions of the state of Iowa, where the contract was made, the title to the Charles Mix county property was actually vested in the defendant Jencks, and the title to the hotel property at Ledyard was vested in Bowdle and Burright; and that therefore the loss was the loss of Bowdle and Burright.

It was also contended by the appellants that the court erred in admitting in evidence the laws and decisions of the state of Iowa relating to the ownership of property held under a contract of sale. The respondents insist that the objection to this evidence is not sufficiently specific to entitle the appellants to avail themselves of the objection in this court, the objection being that the evidence was “incompetent and immaterial.” The rule contended for by the respondents prevails when the objection sought to be interposed to the question may be remedied at the trial if the objection is specifically pointed out. This court has approved and followed the rule laid down by the territorial Supreme Court in Caledonia Mining Co. v. Noonan, 3 Dak. 189, 14 N.W. 426. In Pitts A. W. v. Young,(1895), this court held, “Where a general objection is made at the trial to evidence offered that might have been obviated at the time, had a specific objection been made to it, such a general objection will not be considered by this court on appeal.” In the case at bar the objection went to the merits, and not to any formal defect which might have been obviated, had the objection been specifically pointed out, and hence the objection is sufficient in form.

The theory of the appellants is that the contract, although executed in Iowa, had for its subject-matter, in part, at least, the conveyance of real estate situated in South Dakota, and that as to such property the laws of this state should govern. In Commercial Bank v. Jackson,(1895), this court held that it is well settled that the law of the sovereignty in which real property is situated governs as to transfers of such property, whether...