Keator v. Ferguson

• Decision Date: 03 April 1906
• Citation: 107 N.W. 678,20 S.D. 473
• Parties: KEATOR v. FERGUSON.
• Court: South Dakota Supreme Court

107 N.W. 678

20 S.D. 473

KEATOR v. FERGUSON.

Supreme Court of South Dakota

April 3, 1906

Appeal from Hamlin County Court.

Action by Edward B. Keator against Flora B. Ferguson. From a judgment for defendant, and an order denying a new trial plaintiff appeals. Reversed.

Hall Lawrence & Roddle, for appellant. Cheever & Cheever, for respondent.

CORSON J.

This is an action to enforce the specific performance of a contract for a quarter section of land in Hamlin county, entered into by the defendant as party of the first part, and one Walklin as party of the second part, and through the latter the plaintiff claims title as assignee of the contract. Findings and judgment being in favor of the defendant, the plaintiff has appealed.

The defendant in her answer set up that the plaintiff had not complied with the conditions of the contract, and that she had declared the same forfeited and terminated prior to the commencement of the action. The contract was made and executed on the 21st day of September, 1894, and by its terms provides that the defendant, as party of the first part agrees to sell to the said Walklin the said premises for the consideration of $1,900 the said sum to be paid by delivering to the defendant one-half of the crops for each year and the value of the same after paying the interest on the principal sum, at the rate of 6 per cent. per annum for the first year and 8 per cent. per annum thereafter, to be applied in payment of the principal; and upon the completion of the said payments said defendant agrees to convey the premises by a good and sufficient deed. There were numerous conditions in the contract not necessary to be specifically noticed except the following condition: "It is further mutually covenanted and agreed by and between the parties hereto that the said party of the second part may immediately enter on said land and remain thereon, and cultivate the same as long as he shall perform all the agreements hereinbefore mentioned on his part to be fulfilled and performed and no longer and that if he shall at any time hereinafter violate or neglect any of said agreements he shall forfeit all right or claim under this contract, and be liable to the said party of the first part for damages and shall also be liable to be removed from the said land in the same manner as provided by law for the removal of a tenant that holds over after the expiration of the time specified in his lease, and it shall be lawful for the said party of the first part at any time after the violation or nonfulfillment of any of the said agreements on the part of the said party of the second part to sell and convey the said land or any part thereof to any person whomsoever, and the said party of the first part shall not be liable in any way nor to any person to refund any part of the money which she may have received on this contract nor for any damages on account of such sale and it is hereby expressly understood and declared that time is and shall be deemed and taken as of the very essence of this contract, and that unless the same shall in all respects be complied with by the said party of the second part at the respective times and in the manner above limited and declared that the said party of the second part shall lose and be debarred from all rights and remedies and actions either in law or equity upon or under this contract. Fifth. This contract is declared to be binding on the respective representatives of the parties hereto."

Upon the execution of the contract the said Walklin entered into possession and remained in possession thereof until on or about October 1, 1899, when he assigned his contract to the plaintiff in this action, paying yearly one-half of the products raised upon the property as specified in the contract. The said plaintiff before taking an assignment of the contract visited the defendant and informed her that he was intending to take an assignment of the same, and she made no objections thereto or stated or intimated to him that she intended to take advantage of the delay in the payment of the interest for the year 1899, which was then past due or for the nonpayment of the taxes which were then due and unpaid. The plaintiff sought to obtain in that interview a reduction of the interest and subsequently wrote to her or her husband who was agent of his wife, in regard to such reduction to which the husband replied with the knowledge and consent of his wife refusing to make such reduction. In the interview between them above stated it was agreed between them that there was $1,721.99 still due upon the contract, and of this sum the plaintiff on October 5th forwarded to her by draft the sum of $222 leaving a balance then due of $1,500. The...