Hartshorn v. Smith

• Decision Date: 02 August 1905
• Parties: WILLIAM M. HARTSHORN, Plaintiff and appellant, v. JESSIE A. SMITH et al., Defendants and respondents.
• Court: South Dakota Supreme Court

19 S.D. 653

104 N.W. 467

WILLIAM M. HARTSHORN, Plaintiff and appellant, v. JESSIE A. SMITH et al.,

Defendants and respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Affirmed

H. H. Keith, A. J. Keith

Attorneys for appellant.

Rice & Benson, Aikens & Judge

Attorneys for respondents.

Opinion filed Aug. 2, 1905

FULLER, J.

Pursuant to chapter 9 of the Revised Probate Code, a proceeding was instituted by petition to the county court to obtain a decree requiring the defendants, in their representative capacity, to convey a quarter section of Turner county land to the plaintiff, who, on the 21st day of November, 1892, entered into a contract or bond for a deed with Samuel L. Wilcox, since deceased. From a judgment in favor of plaintiff, requiring the deed to be executed on the payment of a specified sum of money, the defendants appealed to the circuit court, where, without prejudice to any subsequent proceeding or action in equity, this petition was dismissed on the ground that the right of the petitioner to have specific performance was doubtful. From a judgment accordingly entered, plaintiff has appealed to this court.

It affirmatively appears that $1,600 was the consideration agreed upon for the land, now reasonably worth $5,000 ; that $600 was paid at the time the contract was executed, and that upon receipt of the balance of $1,000, evidenced by appellant’s promissory, note of even date therewith, drawing interest at 8 per cent, per annum, payable in five years, together with all taxes assessed subsequently to the execution of such contract, Samuel L. Wilcox obligated himself to make, execute, and deliver a sufficient warranty deed conveying the premises free from all incumbrances; but for reasons not shown to be excusable appellant neither paid the taxes nor the note, and, so far as disclosed by the record, he never tendered the same, or any part thereof, to the payee, Samuel L. Wilcox, who departed this life on the 6th day of May, 1901, nearly four years after such note became due and payable.

The foregoing facts and circumstances are such as to reasonably present a question as to the rights of the petitioner under the statute, and the circuit court was justified in concluding therefrom as a matter of law that specific performance was not enforceable in the county court. As a deed executed pursuant to a decree of the county court is but prima facie evidence of the correctness of the proceedings and of the authority of the executor to make the conveyance, an...