Federal Land Bank of Omaha v. Matson

• Decision Date: 27 July 1942
• Docket Number: 8501.
• Parties: FEDERAL LAND BANK OF OMAHA v. MATSON et al.
• Court: South Dakota Supreme Court

5 N.W.2d 314

68 S.D. 538

FEDERAL LAND BANK OF OMAHA v. MATSON et al.

No. 8501.

Supreme Court of South Dakota

July 27, 1942

S. N. Jaquith and Everett A. Bogue, both of Vermillion, for appellants.

Ivan Liggett, of Vermillion, Carl W. Miller, of Beresford, and Otto A. Gruhn, of Omaha, Neb., for respondent.

SMITH, Judge.

A single assignment of error questions the propriety of a particular instruction to the jury.

The action is in forcible entry and detainer. The defendants asserted a right to possession of the real property under a lease. The facts disclose that in October, 1939, defendants were in possession of 280 acres of land, mortgaged to plaintiff, in which they claimed an interest as heirs of the deceased mortgagor. Theretofore plaintiff had instituted foreclosure of its mortgage by advertisement, and defendants had procured an order enjoining such proceedings and directing that all further proceedings be had in circuit court. On October 23d 1939, conference was had with representatives of plaintiff and the defendants in an attempt to reach a compromise of their differences. According to defendants' version of the events of that day, it was orally agreed that if defendants would stipulate that the above described restraining order might be vacated and that the plaintiff might proceed with the foreclosure by advertisement, the plaintiff would lease defendants 200 acres of the mortgaged property for 1940 on shares and would let them have the remaining 80 acres on which the buildings were located for the years 1940 and 1941 on the basis of no rent for the year 1940 and two-fifths of the crop for 1941. According to plaintiff's version it did not agree that the defendants should have the 80 acres for 1941.

This action was commenced in April of 1941. It was established by the evidence without dispute that pursuant to the oral agreement the parties stipulated for the vacation of the restraining order and that such proceedings were had as resulted in the issuance of a sheriff's deed to the property to plaintiff; that written contract was drawn in 1939 covering the cropping of 200 acres for 1940; that defendants had continued in possession of the 80 acres until the time of the commencement of action, without paying any rent for 1940, had seeded a small acreage for the 1941 crop and had prepared other acres for later seeding.

In substance the instructions of the court pointed out the controversy as to the terms of the oral agreement, advised that under SDC 10.0605 a lease for more than one year must be in writing, and that the question for the jury to decide was whether the defendants had a verbal agreement with plaintiff to lease the 80 acres for 1941. To that portion of the instructions which dealt with the Statute of Frauds defendants excepted in the following words: "The defendants except to Instruction No. 2 for the reason that the instruction is an instruction upon an executory contract and that it does not include or instruct the jury as to the effect of performance on the part of the defendants; that it does not instruct the jury that regardless of the fact that the lease may be oral and be for more than one year, that if the contract is executed on the part of one of the parties that the same is a bona fide contract and without the Statute of Frauds regardless of the fact that it may be for more than one year."

Considered as an abstract statement of our statutory law the questioned instruction is not open to criticism. However, it was without application to the single issue of fact presented by the evidence. There was but one question to be submitted to the jury, namely, the terms of the oral agreement made between the parties on...