Pfister v. Sime
| Decision Date | 27 February 1925 |
| Docket Number | No. 5622.,5622. |
| Citation | 202 N.W. 476,48 S.D. 131 |
| Parties | PFISTER v. SIME et al. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Moody County; John T. Medin, Judge.
Action by L. M. Pfister against Andrew T. Sime and others. Judgment for plaintiff, and defendants appeal. Affirmed.
See, also, 46 S. D. 82, 190 N. W. 885.Warren & Lloyd, of Flandreau, and Danforth & Barron, of Sioux Falls, for appellants.
Rice & Rice, of Flandreau, for respondent.
On March 24, 1920, plaintiff sold, on contract to defendant Sime, a lot and business building in Flandreau. Alleging default in making the payments agreed, plaintiff brought action to foreclose the contract. Plaintiff had judgment, and defendants appeal.
So far as necessary to this case, the contract between the parties provided, in substance: That plaintiff, as soon after April 1st as possible, should furnish an abstract showing marketable title in her to the property; that Sime should pay her $200 on or before the execution of the contract, $1,300 April 1, 1920, and $1,000 on April 1st each year thereafter until the purchase price of $6,500, with annual interest at 6 per cent., was fully paid, and Sime agreed to pay all taxes assessed after the year 1919.
Defendant Warren, as attorney for defendant Sime, examined the abstract, and on April 5, 1920, made his certificate in writing to plaintiff, showing only two objections thereto:
First. That there was an unsatisfied mortgage of $1,000 to Albert Faegre, and said in his certificate:
Second. Unpaid taxes, $118.17.
No other objection was made to the title until long after this action was commenced.
About 10 days after Warren examined the title Warren and Bates bought the contract of sale with full knowledge of the condition of the title and of the above objections. Defendants Warren and Bates were in sole possession of this property, and either used it themselves or collected and used the rents from April 15, 1920, to July 26, 1924. No request was made that the mortgage be released.
Warren and Bates made two small payments on the contract after they purchased it, the last was $200 April 27, 1921. They asked extensions, and on several occasions promised payment, which they failed to make.
On September 17, 1921, plaintiff obtained from Mrs. Faegre and filed a satisfaction of the $1,000 mortgage objected to by Warren. The taxes plaintiff was to pay were paid by defendant and credited to him as a payment on the contract.
On October 15, 1921, defendants Warren and Bates were in default in the payment of the last half of the taxes due for the year 1920, and were in default in the payment of all but $259.05 of the $1,000 and interest due April 1, 1921. Relying on these defaults, this action was brought.
It is defendants' contention: (1) That the covenants in this contract are mutual; (2) that defendant's default in making his payments is excused because plaintiff first defaulted.
The particular points under (2) are: (A) That the paper or abstract furnished was in fact no abstract; (B) that the Faegre mortgage was not satisfied until September 17, 1921, after defendants' payments were due; (C) that plaintiff has deeded to the public a right to the use of an alley 10 feet wide across the south 25 feet on lot 3, thereby preventing her from conveying the entire property covered by the contract.
It may be conceded under objection (1) that the covenants in the contract are mutual.
[1]To defendants' objection 2 (A) it must be said: The abstract was in the usual form in which abstracts of title are made in this state. Defendant accepted and retained the abstract for over two years without any objection to its form. We hold that the acceptance and retention of the abstract without objection to its form is a waiver of the purchaser's right to claim it does not comply with the contract. Prichard v. Mulhall, 140 Iowa, 1, 118 N. W. 43;Moot v. Business Men's Invest. Ass'n, 157 N. Y. 201, 52 N. E. 1, 45 L. R. A. 666.
[2][3]To defendants' objection 2 (B) we hold:
“The requirement that the vendor shall furnish an abstract of title is for the benefit of the purchaser and may be waived by him.” 27 R. C. L. § 239, p. 512.
And that defendants, by failing to request the release of the mortgage or object to its not being released until after suit brought,...
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