Burgess v. Burgess

• Decision Date: 03 June 1903
• Citation: 95 N.W. 279,17 S.D. 44
• Parties: AGNES BURGESS, Plaintiff and respondent, v. MYRON E. BURGESS, Defendant and appellant.
• Court: South Dakota Supreme Court

17 S.D. 44

95 N.W. 279

AGNES BURGESS, Plaintiff and respondent, v. MYRON E. BURGESS,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Bride County, SD

Hon. Frank B. Smith, Judge

Affirmed

G. P. Harben

Attorneys for appellant.

James Brown

Attorney for respondent.

Opinion filed June 3, 1903

HANEY, P. J.

This is an action to compel the specific performance of a contract to convey real property. The plaintiff in her complaint states her cause of action as follows:

“(1) That at the times hereinafter mentioned the defendant was lawfully possessed of the following real estate, situated in the county of Brule, in the state of South Dakota, to wit: The southwest quarter of section 1, township 104 north, range 68 west fifth P. M., under and by virtue of a valid and subsisting entry of said land made by the defendant under the timber culture laws of the United States; that defendant was duly qualified to make such entry wheu the same was made, and said land was subject to entry under the timber culture laws of the United States.

“(2) That on March 26, 1897, the defendant agreed, in writing, to convey said tract of land to plaintiff as soon as he made final proof of his compliance with the timber culture laws, and of his right to a patent for said land.

“(3) That in the month of December, 1899, the defendant made such final proof, which proof was duly approved by the proper officers of the Land Department of the United States, and a patent for said land has been duly issued to the defendant by the United States, and defendant is now the owner of said land, and the same is of the reasonable value of $800.

“(4) That plaintiff has duly performed all the conditions of the agreement for the conveyance to her of said land required by said agreement to be performed on her part.

“(5) That, at the time of making said agreement to convey said land to plaintiff, the defendant had fully complied with the timber culture laws of the United States under his said entry of said tract. and could then have made final proof for said tract, had he so desired.

“(6) That since he made said final proof, and received the patent therefor, plaintiff has duly demanded of defendant that he convey to her said tract of land in accordance with said agreement, but defendant refuses to make such conveyance, and he has not executed to plaintiff any conveyance of said land, or of any part thereof."

The first and third paragraphs of the complaint are expressly admitted in the answer, and the others are denied. The court below found the facts to be as alleged in the complaint, and gave judgment for the plaintiff. Defendant appealed from the judgment, and from an order denying his application for a new trial.

It was stipulated by the parties that the following statement of facts might be read in evidence by either party, “subject to any objections as to competency, relevancy, and materiality” that the other party might desire to make.

“The plaintiff and defendant were married to each other on September 11, 1885, and lived together as husband and wife until about April 17, 1897, about which time the plaintiff left defendant and went to the state of Iowa, and on May 17, 1898, the defendant in this action obtained a divorce from plaintiff on the grounds of desertion; such divorce being obtained in this court after service of the summons upon the defendant in the state of Iowa. That in the month of March, 1897, the plaintiff herein was in the state of Iowa on a visit, and at that time the martial relations between the parties were unsatisfactory, and on March 26, 1897, the defendant herein wrote to the plaintiff herein a letter, in which, after relating the misery he had endured, owing to the incompatibility of their dispositions, he said:

‘I am not to blame for being constituted so and cannot stand it as I have done longer. As to our dear one, I trust she will be even better under your care alone than could possibly be with two extremes to guide her; but remember she has some of her poor father’s warmth in her heart and must be appreciated and not crushed, or her life will be one of misery, too, may God help you both, I shall furnish her support always, and send you any and all we have that you wish, and will prove up the land and send you the deed as soon as possible. All I ask is a mutual settlement and bill, for which I will pay all costs, using the lighest cause possible.’

That the land referred to in said letter was the same land described in the complaint herein, and was the only public land on which defendant had a subsisting entry or could prove up. That plaintiff, relying on the promise in said letter that the defendant would support their only child, and would convey to plaintiff said land, made no appearance in said action of divorce, and made no claim for alimony or support either for herself or the child of the parties hereto. Th...