Bradford v. Smith

• Decision Date: 03 February 1904
• Parties: S. C. BRADFORD, Appellee, v. HUGH SMITH, Appellant
• Court: Iowa Supreme Court

98 N.W. 377

123 Iowa 41

S. C. BRADFORD, Appellee, v. HUGH SMITH, Appellant

Supreme Court of Iowa, Des Moines

February 3, 1904

Appeal from Buena Vista District Court.--HON. A. D. BAILIE, Judge.

SUIT in equity for the specific performance of a contract to convey real estate. The trial court granted the relief prayed, and defendant appeals.--Modified and affirmed.

MODIFIED and AFFIRMED.

McCoy & McCoy and John C. Williams for appellant.

Helsell & Schultz and F. F. Farille for appellee.

OPINION

DEEMER, C. J.

The land which it is claimed defendant agreed to convey lies in Buena Vista county. Defendant lives in Mahaska county, and on being notified to appear and defend this suit, which was brought in Buena Vista county, defendant filed a motion to change the place of trial to Mahaska county. The motion was overruled, and of this complaint is made.

The ruling was correct. Epperly v. Ferguson, 118 Iowa 47, 91 N.W. 816; Barringer v. Ryder, 119 Iowa 121 93 N.W. 56; and Donaldson v. Smith, 122 Iowa 388, 98 N.W. 138. We are now asked to overrule these cases on the theory that they were wrongly decided. It is contended that such an action as this is purely in personam, and that the situs of the real estate is entirely immaterial. There is much force in the argument, yet, as the whole matter is statutory, we are not disposed to change the interpretation put upon these acts of the Legislature by the cases cited. There are some practical advantages arising from the construction already given, which should not be overlooked. The decree, when granted, affects title to land, and it is always advisable to have such decrees recorded in the county where the land is situated. This, in addition to the fact that we are satisfied with the construction already placed upon our statutes, is sufficient reason for not departing from our former holding.

II. The contract which plaintiff seeks to enforce is in writing the material parts being as follows:

"This agreement made this first day of February, 1901, between Hugh Smith of the first part and C. E. Herrick of Marathon, County of Buena Vista, State of Iowa, of the second part, Witnesseth that in consideration of the stipulations herein contained and the payments to be made hereinafter specified the first party agrees to sell unto the second party the east half of section No. 14 in township No. 93, north of range 35 west of the Fifth P. M. being in Buena Vista County, Iowa, containing according to the United States survey 320 acres, be the same more or less, for the sum of $ 12,800.

"This sale made subject to a lease on the above premises for the year 1901, said lease to be assigned to second party when final payment is made and deed delivered to first party. First party agrees to furnish abstract showing good and perfect title.

"In case the second party, his legal representative, or his assigns shall pay the several sums of money as aforesaid punctually and at the several times above limited and shall strictly and literally perform all and singular his agreements and stipulations aforesaid after their true tenor and intent, then the first party will make unto the second party, his heirs or assigns (upon the request and surrender of the contract) a deed conveying said premises in fee simple with the ordinary covenants of warranty. But in case the second party shall fail to make the payments aforesaid, or any of them, punctually and upon the strict terms and times above limited, and likewise perform and complete all and each of his agreements and stipulations aforesaid, strictly and literally without any failure or default times of the payment being the essence of the contract then the first party shall have the right to declare this contract null and void and all rights and interests hereby created or then existing in favor of the second party or derived under the contract shall utterly cease and determine and the premises hereby contracted shall revert to and revest in said first party (without any declaration or forfeiture or act of re-entry or without any other act by said first party to be performed and without any right of said second party for reclamation or compensation for moneys paid or improvements made) as absolutely, fully and perfectly as if this contract had never been made.

"If, however, the said first party shall elect not to declare this contract null and void in case the second party shall fail to make all payments or any of them, as above stipulated the second party agrees to pay interest at the rate of eight per cent per annum, on all payments both of interest and principal, from the date of maturity. And it is further stipulated that no assignment of the premises shall be valid unless the same shall be endorsed hereon, or permanently attached hereto and countersigned by the first party, and that no agreement or condition or relation between the second party or his assignee or any other person, acquiring title or interest from or through him shall preclude the first party from the right to convey the premises to the said second party or assigns on the surrender of this agreement and the payment of the unpaid portion of the purchase price which may be due to the first party."

Herrick assigned his interest therein to plaintiff, and plaintiff has performed or offered to perform all the conditions required of Herrick. Defendant is married, but his wife is insane, and was at the time the contract was executed, and he contends that the contract was conditioned on his obtaining an order from court allowing him to dispose of his wife's interest in the property; that he in good faith tried to get this order, but failed to do so; and that the contract never became binding upon him for this reason.

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