Pier v. Lee
| Citation | 86 N.W. 642,14 S.D. 600 |
| Parties | PIER v. LEE. |
| Decision Date | 12 June 1901 |
| Court | South Dakota Supreme Court |
Appeal from circuit court, Yankton county.
Action by Joseph Pier against Joseph Lee to quiet title to real estate. From a judgment in favor of plaintiff, defendant appeals. Reversed.
John Holman and R. B. Tripp, for appellant. French & Orvis, for respondent.
This is an action to quiet title to and recover the possession of certain real estate situated in Yankton county, together with the value of the rents, profits, and issues of said land during the time the same has been occupied and possessed by the defendant, which are alleged to be of the value of $100 per annum. The defendant in his answer admits that prior to September 2, 1889, the plaintiff was the owner in fee and entitled to the possession of said land; admits that the defendant claims an estate and interest in said land adverse to the plaintiff, and has been in possession thereof since about October, 1889; and denies each and every other allegation contained in said complaint. The defendant, for a further answer, defense, and counterclaim, alleges that on the 2d day of September, 1889, the plaintiff and defendant entered into an agreement whereby the plaintiff agreed to sell and convey to the defendant the property described in the contract, and in which contract it is provided that said plaintiff, in consideration of $100, and upon the express condition (which is declared a condition precedent) that said defendant, his heirs, etc., shall well and faithfully perform the covenants thereinafter mentioned, agrees to deliver to said defendant a deed in fee simple for the land described in the contract and in the complaint; and the said defendant covenanted and agreed with the plaintiff to pay him the further sum of $850, as follows: $200 or more on the 1st day of September, 1891, 1892, and 1893, and $250 on the 1st day of September, 1894, together with interest, payable annually on the 1st day of September, at the rate of 10 per cent annually on all sums, whether principal or interest, after due; and said defendant agreed to pay all taxes and assessments on said land for the year 1889 and subsequent years. It was also provided that time should be considered the essence of the contract, and, in case of the failure of the defendant in the performance of all or either of the covenants or promises on his part to be performed, said plaintiff should have the right to declare the contract void without notice to the defendant, and thereupon to recover all the interest which should have accrued upon the contract up to the day of declaring it void, as rent for the use and occupation of the same, and to resell the same to any other purchaser, to hold and retain the moneys paid on the contract by said defendant as liquidated damages, and to take immediate possession of the premises. It is further alleged in the answer that upon the execution of said contract the defendant paid the sum of $100, and in October, 1889, entered into possession of said land, and has ever since cultivated improved, used, and occupied said premises as a homestead, to the knowledge of said plaintiff; that on or about the 2d day of September, 1890, he paid the plaintiff $85, then due as interest under said contract. The defendant then set out what he claims to be an extension of time for the payment of the $285 due September 1, 1891; that on or about the 1st day of September, 1892, the defendant offered to pay the plaintiff $1,078.50, the full amount due said plaintiff under said contract, for the deed therein provided for, and thereupon demanded such deed to said property; that plaintiff refused to accept said money or execute said deed; that thereupon said defendant immediately deposited said money, in the plaintiff's name, in the Yankton National Bank, to be paid to plaintiff on delivery of the deed called for by said contract, and notice of said deposit was thereupon given said plaintiff; that defendant, by his cultivation and improvement of said land, has enhanced the value thereof in the amount of $1,100; that at the time the defendant went into possession of said premises the same were unimproved and of a value not to exceed $950; that defendant has duly performed or offered to perform all of the conditions of said contract on his part; that plaintiff has not executed said deed, though defendant prior to the commencement of this action demanded the execution thereof; that by reason of the breach of the covenant to convey on the part of the plaintiff, and his failure to perform the same, defendant has suffered damages in the sum of $1,500, wherefore the defendant demands judgment that the plaintiff's action be dismissed, that plaintiff be required to execute to said defendant a conveyance of said land in accordance with the terms of the contract, and that the defendant recover $1,500 damages, together with his costs and disbursements herein. There was a trial of the case by jury, and a special verdict rendered, the substance of which is that the plaintiff did not extend the time for the payment of the installment due on September 1, 1891, and that on the 8th of December, 1891, the plaintiff demanded payment of the $200 principal and $85 interest due September 1st, and that on or about the 11th day of December, 1891, plaintiff declared the contract forfeited. There were certain stipulations of fact entered into by the parties, by which, among other things, it was stipulated that in January, 1892, plaintiff commenced an action against the defendant in a justice's court of Yankton county to recover possession of said land, and said action, on certificate, was taken to the circuit court, where, on or about March 1, 1899, it was dismissed. The court finds that there was no extension of time for the payment of the $200 principal and $85 interest due September 1, 1891, and that in December of that year the plaintiff declared the contract forfeited. The court further finds that the defendant on September 1, 1892, offered to pay the plaintiff the sum of $1,078.50, and demanded a deed to the said property, which sum plaintiff refused to accept, and also refused to make said deed; that the defendant caused the money to be deposited substantially as set out in the answer; that the plaintiff has not executed said deed, though the defendant, prior to the commencement of this action, demanded the execution thereof. The court thereupon concludes, as matter of law, that the plaintiff is entitled to judgment quieting title in him, and for the possession of the premises described in the complaint; that the plaintiff is entitled to $50, the value of the rents for the year 1893, and the same amount for each year thereafter, including 1899, but that defendant is entitled to offset against said rents the amount paid on said contract, with interest at the rate of 7 per cent. per annum from the date of payment. Thereupon judgment was entered in favor of the plaintiff, quieting title and for the possession of the premises, and for $214.34, the value of the rents in excess of the amount paid by the defendant to the plaintiff, together with the interest thereon. Motion for a new trial was made and denied, and from the judgment and order this appeal has been taken.
It will be observed from the foregoing statement that time was made the essence of the contract; that...
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