Kennedy v. Dennstadt

• Court: North Dakota Supreme Court
• Writing for the Court: CHRISTIANSON, J.
• Citation: Kennedy v. Dennstadt, 31 N.D. 422, 154 N.W. 271 (N.D. 1915)
• Decision Date: 14 September 1915

154 N.W. 271

31 N.D. 422

THOMAS KENNEDY v. A. E. DENNSTADT

Supreme Court of North Dakota

September 14, 1915

From an order of the District Court of Barnes County; Coffey, J plaintiff appeals.

Reversed.

A. W Fowler, for appellant.

A "good and merchantable title" in respondent is not shown or satisfied by showing the legal title in someone, and an equitable estate in respondent. Such does not satisfy or fulfil his executory contract. It is an independent covenant on the part of respondent, and a condition precedent. Martin v. Roberts, 127 Iowa 218, 102 N.W. 1126; Blied v. Barnard, 120 Minn. 399, 139 N.W. 714; Gates v. Parmly, 93 Wis. 294, 66 N.W. 253, 67 S.W 739; Brown v. Widen, Iowa , 103 N.W. 158; 39 Cyc. 1516, note 48.

The contract further required the respondent to furnish, within a fixed time, an abstract showing upon its face a good and merchantable title in himself, and, upon his default to do so, appellant was entitled to rescind the contract and recover back his purchase money. Buswell v. O. W. Kerr Co. 112 Minn. 388, 128 N.W. 459, 21 Ann. Cas. 837; Brown v. Widen, Iowa , 103 N.W. 158; Grow v. Taylor, 23 N.D. 475, 137 N.W. 451.

These matters are material, and must disclose the condition of the title when the contract was made, and that such title then met the covenants of the contract. George v. Conhaim, 38 Minn. 338, 37 N.W. 791; Taylor v. Williams, 2 Colo.App. 559, 31 P. 504; Horn v. Butler, 39 Minn. 515, 40 N.W. 833; Smith v. Taylor, 82 Cal. 553, 23 P. 217; Howe v. Hutchison, 105 Ill. 501; Kane v. Rippey, 22 Ore. 296, 23 P. 180; Lessenich v. Sellers, 119 Iowa 314, 93 N.W. 348.

Where the contract requires an abstract of a stipulated character, until such is furnished the contract has not been performed. Boas v. Farrington, 85 Cal. 535, 24 P. 787; Martin v. Roberts, 127 Iowa 218, 102 N.W. 1126; Spooner v. Cross, 127 Iowa 259, 102 N.W. 1118; Noyes v. Johnson, 139 Mass. 436, 31 N.E. 767; Bruce v. Wolfe, 102 Mo.App. 384, 76 S.W. 723; Heller v. Cohen, 154 N.Y. 299, 48 N.E. 527; Williams v. Daly, 33 Ill.App. 454; Carrabine v. Cox, 136 Mo.App. 370, 117 S.W. 616.

The vendor must show a title good in himself--not in a third person. McVeety v. Marvey Mercantile Co. 24 N.D. 245, 139 N.W. 586, Ann. Cas. 1915B, 1028; McCulloch v. Bauer, 24 N.D. 109, 139 N.W. 318.

The abstract, to comply with such contract, must show "good and merchantable" title in the vendor at the time that he is the owner of both the legal and equitable title. Ormsby v. Graham, 123 Iowa 202, 98 N.W. 724; Reynolds v. Borel, 86 Cal. 538, 25 P. 67; Ankeny v. Clark, 1 Wash. 549, 20 P. 583, 148 U.S. 345, 37 L. ed. 475, 13 S.Ct. 617; Maupin, Marketable Title to Real Estate, p. 731 and cases; Murray v. Ellis, 112 Pa. 485, 3 A. 845; Adams v. Reed, 11 Utah 480, 40 P. 723; 39 Cyc. 1465, and cases cited.

Lee Combs and L. S. B. Ritchie, for respondent.

The abstract provision in the contract was not an independent covenant; this provision and that as to the delivery of the deed are to be held as concurrent, and must be taken together. The furnishing of the abstract was not a condition precedent. Kessler v. Pruitt, 14 Idaho 175, 93 P. 965; Plummer v. Kennington, 149 Iowa 419, 128 N.W. 552.

"Where the covenants in a written contract for the sale of real estate are mutual and dependent, the vendor's obligation to convey being dependent upon a cash payment and the execution of notes and a mortgage by the vendee, the vendee can place the vendor in default only by tendering performance on his part; and, in the absence of such tender, he is not entitled to rescind the contract and recover back payments made when the contract was executed. Arnett v. Smith, 11 N.D. 55, 88 N.W. 1037; Woodward v. McCollum, 16 N.D. 42, 111 N.W. 623.

One who is required to furnish an abstract in connection with the sale of real estate, showing good title, sufficiently complies with such promise if he furnishes such abstract with other papers, showing his right and power to convey the land as promised and at the time stipulated in the contract. Such right and power need not be wholly disclosed by the abstract itself. Welch v. Dutton, 79 Ill. 465; Laub v. DeVault, 139 Ill.App. 398; Prichard v. Mulhall, 140 Iowa 1, 118 N.W. 43.

The contract here provides for mutual acts of the parties. The delivery of the deed was the delivery of the abstract, and the delivery of possession was to follow the cash payment. They were dependent, one upon the other. Gail v. Gail, 127 A.D. 892, 112 N.Y.S. 96; Clifton v. Charles, 53 Tex. Civ. App. 448, 116 S.W. 120.

If the agreement is made by the vendor in good faith, even though he be not the absolute owner of the land, but has at the time such an interest therein or is so situated that he can carry into effect the agreement on his part at the time when he has agreed to do so, it will be upheld. Chitty, Contr. 11th, Am. ed. 431; Dresel v. Jordan, 104 Mass. 407; Townshend v. Goodfellow, 40 Minn. 312, 3 L.R.A. 739, 12 Am. St. Rep. 736, 41 N.W. 1056; Smith v. Gansler, 83 Ky. 371; Gaither v. O'Doherty, 11 Ky. L. Rep. 594, 12 S.W. 306; Tapp v. Nock, 89 Ky. 414, 12 S.W. 713; Tiernan v. Roland, 15 Pa. 429; Silfver v. Daenzer, 167 Mich. 362, 133 N.W. 16; Golden Valley Land & Cattle Co. v. Johnstone, 25 N.D. 148, 141 N.W. 76; Martinson v. Regan, 18 N.D. 467, 123 N.W. 285.

"Where an answer contains specific or general denials of the material allegations of the complaint, it is not subject to a general demurrer. This is true even though the answer contains other defenses which are demurrable. Redwater Land & Canal Co. v. Reed, 26 S.D. 466, 128 N.W. 702.

"Where the facts alleged in the complaint or answer entitle the party pleading to any relief whatever, although only nominal, a demurrer directed to the entire pleading, on the ground that it does not state a cause of action or defense, should be overruled. Acme Harvesting Mach. Co. v. Guy, 27 S.D. 441, 131 N.W. 508, and cases cited; Smith v. Jaccard, 20 Cal.App. 280, 128 P. 1023; Sweet v. Salt Lake City, 43 Utah 306, 134 P. 1167, 8 N. C. C. A. 922; 31 Cyc. 329, and cases there cited; Stoddard v. Treadwell, 26 Cal. 294; McCann v. Pennie, 100 Cal. 547, 35 P. 158; Collier v. Ervin, 2 Mont. 335; Burgi v. Rudgers, 20 S.D. 646, 108 N.W. 253; Williams v. Black, 24 S.D. 501, 124 N.W. 728; Redwater Land & Canal Co. v. Reed, 26 S.D. 466, 128 N.W. 702; Van Tuyl v. Robin, 80 Misc. 360, 142 N.Y.S. 535; Bergstrom v. Commercial Advertiser Asso. 147 A.D. 774, 131 N.Y.S. 1025.

OPINION

CHRISTIANSON, J.

Plaintiff brought this action to recover $ 1,000, the amount of the first payment made under a contract for the purchase of certain real estate. The contract is as follows:

This agreement made in duplicate this 8th day of October, A. D. 1912, between A. E. Dennstadt, party of the first part, and Thomas E. Kennedy, party of the second part:

Witnesseth, That in consideration of the stipulation herein contained and payments to be made as hereinafter specified, the first party hereby agrees to sell unto the second party the following described real estate, situate in the county of Barnes and state of North Dakota, to wit:

North half (N. 1/2) and the southwest quarter (S.W. 1/4) of the northwest quarter (N.W. 1/4) and the north half (N. 1/2) of the N.E. 1/4, all in section 34, township 142, range 61, west of the 5th principal meridian and containing 200 acres, more or less, according to the government survey thereof for the sum of $ 11,400.

And the second party hereby agrees to purchase all right, title, and interest in said described real estate, and pay the said amount, $ 11,400, to said party, his heirs, assigns, or representatives, as follows:

One thousand dollars upon execution of this instrument, and the balance of $ 10,400 in the following payments, to wit:

$ 3,000 payable on the 1st day of March, 1913.

$ 1,000 payable on the 1st day of March, 1914.

$ 1,000 payable on the 1st day of March, 1915.

$ 1,000 payable on the 1st day of March, 1916.

$ 1,000 payable on the 1st day of March, 1917.

$ 1,000 payable on the 1st day of March, 1918.

$ 1,000 payable on the 1st day of March, 1919.

$ 1,400 payable on the 1st day of March, 1920.

Party of the second part to assume a mortgage of $

Party of the second part to assume a mortgage of $

All deferred payments to bear interest at 6 per cent per annum from October 8, 1912.

Provided said first party furnishes said second party with an abstract of title to the above-described real estate, showing a good and merchantable title, within ninety days from the date hereof, and execute and deliver unto said second party a good and sufficient warranty deed to said land, with waiver and conveyance of homestead therein on or before the 1st day of March, 1915.

But in case said second party fails in his payments as above stipulated, then the first party shall have the right to declare this contract null and void, and title to said real estate shall revert to said first party, and second party shall forfeit all money paid on this contract.

Excepting default caused by remediless flaw to the title, first party agrees that, upon failure to furnish said warranty deed to said second party, as above stipulated, that he will pay unto said second party the sum of $ 100 as "liquidated damages," together with all money paid on this contract, with interest at 6 per cent on same from date hereof.

It is further agreed that possession to the above-cherished real estate shall be given to said second party on the first day of March, 1913, providing said payments are made as above stipulated.

Taxes for the year 1912 to be paid by the party of the first part.

Taxes for the year 1913 to be paid by the party of the second part.

In witness whereof said parties hereto set their...