Henderson v. Daniels

• Citation: 62 Mont. 363
• Decision Date: 13 April 1922
• Docket Number: No. 4640.,4640.
• Parties: HENDERSON ET AL. v. DANIELS.
• Court: United States State Supreme Court of Montana

62 Mont. 363

HENDERSON ET AL.

v.DANIELS.

No. 4640.

Supreme Court of Montana.

Feb. 20, 1922.

Rehearing Denied April 13, 1922.

Commissioners' Opinion.

Appeal from District Court, Fergus County; Jack Briscoe, Judge.

Action by S. S. Henderson and another against H. E. Daniels. From a judgment for plaintiffs and an order denying a new trial, defendant appeals. Reversed and remanded, with directions.

Belden & De Kalb, of Lewistown, for appellant.

Ralph J. Anderson, of Lewistown, for respondents.

STARK, C. C.

The record in this case discloses that on the 28th day of December, 1916, S. S. Henderson, of Monmouth, Ill., and David W. Henderson and Lizzie L. Hickman, respectively the executor and executrix of the last will and testament of Eliza J. Henderson, deceased, of Monmouth, Ill., in their own right, and for and on behalf of the estate of Eliza J. Henderson, deceased, under a power contained in the will of said Eliza J. Henderson, deceased, as the parties of the first part, entered into a contract with E. H. Daniels, of Lewistown, Mont. (the defendant herein), as party of the second part, by the terms of which the parties of the first part agreed to sell and convey to the party of the second part, and the party of the second part agreed to purchase from them, a tract of land located in Fergus county, Mont., for the sum of $29,900, of which amount $6,000 was to be paid in cash, upon the execution of the agreement and the deposit of the same in escrow with the First National Bank of Lewistown, together with a warranty deed conveying the land to the party of the second part. The balance of the purchase price was to be paid as follows, to wit: $4,000 on or before March 1, 1918; $2,000 on or before March 1, 1919; $2,000 on or before March 1, 1920; and $2,900 on or before March 1, 1921.

Upon making the above payments, the party of the second part had the privilege of executing a note to the first parties for the balance of $13,000.00, bearing interest at the rate of 6% per annum, payable March 1, 1924, secured by a first mortgage covering the premises, and on delivery of the same to the bank, to receive the deed. The party of the second part was given the right to make any or all of said installment payments at any time he saw fit, whether due or not, and upon doing so and executing the note and mortgage above mentioned, to receive the deed from the bank. There was a further provision in the contract, “that within a reasonable time after the execution of these presents the parties of the first part shall secure such authority as may be required to execute and deliver said deed and shall procure at their own expense an abstract of title to all said lands, showing a good and marketable title, or title that will be unincumbered at the date of the delivery of said deed.” The contract also contained a clause forfeiting the $6,000 paid, in the event of the failure of the party of the second part to complete the purchase on said land.

The defendant did not pay the installment due March 1, 1918, and thereafter the plaintiffs commenced this suit to cancel the contract and declare a forfeiture of the $6,000 paid thereon.

An amended complaint was filed May 9, 1919, the first two paragraphs of which are as follows:

“I. That Ivan Henderson is now duly appointed, qualified, and acting administrator of the estate of Eliza J. Henderson, deceased, with the Will Annexed.

II. That prior to the 28th day of December, 1916, David W. Henderson and Lizzie L. Hickman were appointed respectively executor and executrix by the county court of Warren county, Ill., and ever since said time have been, and now are, respectively executor and executrix of the last will and testament of Eliza J. Henderson, deceased, in the said state of Illinois.”

The complaint sets out the terms of the agreement above referred to; the default of the defendant in making the payment of March 1, 1918; that demand had been made on the defendant for the same; that immediately after the execution of the agreement the defendant entered into possession of the premises and has remained in possession at all times down to the commencement of the suit; that the rental value of the premises during the time the same were so occupied by the defendant exceeded the amount paid by the defendant to the plaintiff; and that the existence of the contract casts a cloud upon the plaintiffs' title to the real estate mentioned. A copy of the contract is attached to and made a part of the amended complaint.

To this amended complaint the defendant filed a general demurrer, which was overruled, and thereafter he filed his answer denying the allegations of paragraphs I and II above quoted, and admitting all of the other matters alleged, except the rental value of the premises, and that the contract constituted a cloud upon the title to the land.

As a separate defense, the answer alleged that, by reason of the provisions of the contract, it was the duty of the plaintiffs, within a reasonable time, to secure and deliver a deed and abstract showing a good and marketable title or title that would be unincumbered at the date of delivery thereof, and to procure authority from the proper court to execute and deliver the deed therein mentioned, that the plaintiffs had willfully failed and neglected to do this, and thereby the defendant had been greatly hampered and embarrassed in complying with the contract for the reason that he was to have the right of taking up the contract and paying the balance due at any time he chose, and that he had been prevented from exercising this option on account of this neglect of the plaintiffs, of which fact they had been advised prior to the bringing of the suit; that the provisions of the contract concerning payment and the delivery of the deed and furnishing of the abstract of title were and are concurrent conditions, and that payment was not due until the plaintiffs had complied with the terms of said contract.

The case was tried before the court without a jury, and resulted in findings and a decree in favor of the plaintiffs.

Defendant moved for a new trial, which was denied, and the case is now before this court on appeal from the judgment and from the order overruling the motion for a new trial.

At the beginning of the trial defendant objected to the introduction of any evidence by plaintiffs on the ground that the amended complaint fails to state facts sufficient to constitute a cause of action, which objection was overruled.

Thereupon plaintiffs offered in evidence all of the papers in the matter of the estate of Eliza J. Henderson, deceased, in the district court of Fergus county, Mont., consisting of a petition filed by the plaintiff Ivan Henderson on October 14, 1918, for the probate of the last will and testament of Eliza J. Henderson, deceased, setting forth the fact of the death of decedent in Warren county, Ill., that she left real estate in Fergus county, Mont., and that she left a will bearing date March 25, 1914, which has been proved, allowed, and admitted to probate in the county court of Warren county, state of Illinois, a court of competent jurisdiction, and that an authenticated copy of such proceedings is exhibited and presented with said petition. The petition contains other recitals describing the property of the estate in Fergus county, the names of the heirs, that David W. Henderson and Lizzie L. Hickman are named as executor and executrix of said will, but that they do not reside in Montana, and refuse to act as such.

The documents filed with this petition purporting to be the authenticated copy of probate proceedings in Warren county, Ill., consist of: (1) Petition for probate of the last will and testament of Eliza J. Henderson, deceased; (2) orders for hearing; (3) certificate of mailing notice by clerk; (4) order admitting will to probate; (5) oath of executor and executrix; and (6) letters testamentary and certified copy of the last will and testament of the deceased. To these papers is attached a certificate of the clerk of the county court of Warren county to the effect that said papers are true and correct copies thereof, as the same appear of record in his office.

The balance of the papers included in said Exhibit A consist of an order by the district court of Fergus county, fixing the date for hearing the petition and directing notices to be given, a certificate of proof of will and facts found, and an order of said court admitting the will to probate, and appointing the plaintiff Ivan Henderson as the administrator with the will annexed.

Both the certificate of proof of will and facts found and the order admitting the will to probate and appointing the plaintiff Ivan Henderson as administrator with the will annexed disclose that the only testimony introduced in support of the petition at the hearing consisted of the copies of the proceedings had in the county court of Warren county, Ill., as above set out.

The defendant objected to the introduction of this Exhibit A in evidence upon grounds which will be discussed later on in this opinion, and the objection was overruled.

In the view of the case which we entertain, there are but two propositions which require discussion and these are: (1) Does the complaint state a cause of action? (2) Did the court err by admitting in evidence Plaintiffs' Exhibit A?

I. In order to answer the first proposition it is necessary to examine and construe certainprovisions of the contract upon which the action is based. According to the amended complaint Eliza J. Henderson died in Illinois, and two of the parties of the first part in the contract, viz. David W. Henderson and Lizzie L. Hickman, were prior to its date appointed executor and executrix respectively of her will in the county court of Warren county, Ill.

At the time the contract was entered into this will had not been admitted to probate in the state of Montana, so the executor and executrix were not in a position to...