Hickman v. Long

• Decision Date: 31 December 1914
• Docket Number: No. 3608.,3608.
• Citation: 34 S.D. 639,150 N.W. 298
• Parties: HICKMAN et al. v. LONG et al.
• Court: South Dakota Supreme Court

34 S.D. 639

150 N.W. 298

HICKMAN et al.

v.LONG et al.

No. 3608.

Supreme Court of South Dakota.

Dec. 31, 1914.

Appeal from Circuit Court, Brookings County; C. G. Sherwood, Judge.

Action by E. W. Hickman, as administrator of P. A. Hickman, deceased, and another, against W. W. Long and others, and William W. Arns. From a judgment for plaintiffs, the defendant Arns appeals. Affirmed.Cheever & Cheever, of Brookings, for appellant.

Albert Matson and Hall, Alexander & Purdy, all of Brookings, for respondents.

WHITING, J.

One P., the owner of a tract of land in Brookings county, did, as party of the first part, enter into a written contract with one L., as party of the second part, whereby P. contracted to sell to L., and L. contracted to purchase, the said tract of land. L. agreed to make certain payments of principal and interest from time to time over a period of some 12 years, and, at the end of a certain period P. was to give deed to L. and take back a mortgage for the balance then due, provided all payments then due had been paid. Among other provisions of said contract was the following:

“And in case of the failure of said party of the second part to make either of the payments or interest thereon or any part thereof, or perform any of the covenants on his part hereby made and entered into, *** this contract shall at the option of the party of the first part be forfeited and determined, by giving the said second party thirty days' notice in writing of the intention of said first party to cancel and determine this contract, setting forth in said notice the amount due upon said contract, and the time and place, when and where, payment can be made by said second party.”

This action was brought to foreclose any rights held by the party of the second part and his assignees under such contract. All the defendants, except the one who was the then owner and holder of such contract, defaulted. This defendant demurred to the complaint; such demurrer was overruled; answer was interposed; the answer demurred to; that demurrer sustained, and defendant stood thereon; judgment was entered against him, and he appealed.

It stands admitted, by the demurrer to the answer, that some considerable payments had been made under such contract; in fact, more than the reasonable value of the use of the premises during the time the contract had run. Upon the other hand, it stands admitted by such answer that there was a considerable sum past due at the time this action was brought.

[1] Plaintiffs, in their complaint, offered full performance of the contract, and asked that the court fix a time within which the terms of the contract should be complied with, and that defendants be foreclosed of any rights under said contract if payment was not made within the time decreed. Thus it will be seen that this action conformed to the provisions of chapter 138, Laws 1913, which, among other things, provides:

“Section 1. Whenever default has occurred in the performance of any of the terms and conditions of an executory contract for the sale or exchange of real estate an action may be brought in the circuit court of the county in which said land is situated, for a foreclosure of all rights under such contract asserted adversely to the plaintiff in such action, and upon the trial thereof the court shall have the power to and by its decree shall fix the time within which the party or parties in default must comply with the terms of such contract on his or their part, which time shall be not less than ten days from the rendition of such decree, and unless the parties against whom such decree is rendered shall...