Riley v. Wheat

• Decision Date: 31 March 1922
• Docket Number: 4966
• Citation: 45 S.D. 320,187 N.W. 425
• Parties: MARY RILEY, Plaintiff and Respondent, v. CHARLES M. WHEAT , Defendant and Appellant, Impleaded With Julius and Lewis Miller,
• Court: South Dakota Supreme Court

45 S.D. 320

187 N.W. 425

MARY RILEY, Plaintiff and Respondent, v. CHARLES M. WHEAT ,

Defendant and Appellant,

Impleaded With Julius and Lewis Miller,

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. John T. Medin, Judge

#4966--Affirmed

Kirby, Kirby & Kirby

Attorneys for Appellant.

Jones, Muller & Conway

Attorneys for Respondent.

Opinion filed March 31, 1922; Rehearing denied May 16, 1922

ANDERSON, J.

June 6, 1919, plaintiff and defendant entered into a contract for purchase and sale of a half section of land in Minnehaha county, the material portions of which are: Plaintiff to sell to defendant the property comprising 320 acres, more or less, for $140 per acre, making a total consideration of $44,800. Plaintiff to deed property clear of incumbrance March 1, 1920. Defendant at said time to make payment of $12,800 and execute mortgage secured on the land in the sum of $30,000, bearing interest at 5 1/2 per cent. ten years from March 1, 1920. Possession to be delivered at said time. At time of contract defendant paid $2,000. Plaintiff to furnish abstract March 1, 1920, showing clear, merchantable title in herself. Plaintiff to take up $8,000 mortgage March 1, 1920. It being agreed that time of payment should be an essential part of the contract.

Defendant failed to make the $12,800 payment due March 1, 1920, and assigned as reason for such failure that 100 rods of wire fence, a feed bunk, and certain water pipe, claimed to aggregate in value $550, had been, since the making of the contract, removed from the premises, and also claimed that plaintiff had failed. to furnish an abstract showing merchantable title in herself and had failed to pay the $8,000 mortgage incumbrance. Defendant also claimed that land was incumbered by an easement, being a railroad right of way across a portion of the land, and which was not shown on the abstract furnished. Defendant also claims that at the time of the contract he had no knowledge of the railway passing over the premises, although evidence shows he inspected land at time of purchase. Defendant also claims that there is about 9 acres of the farm taken up by section lines used as public highways, and that by reason thereof he should not be held to performance of the contract. Defendant set up a counterclaim, in which he demanded judgment for $2,000, the amount paid on the contract, and for rescission of the contract.

It is admitted that defendant in January 1920, rented the premises in question to the codefendants Miller, and was under the contract of rental to receive $650 cash for pasture and hay land, and two-fifths of the corn, oats, and barley, delivered at market. It is also admitted that defendant remained in possession of the premises through his tenants up to and including the trial of this case, which took place in January, 1921. Findings and conclusions were in favor of plaintiff, but the court ascertained the value of the property that had been removed from the premises after the making of the contract, together with the value of the land occupied by the railroad right of way, and deducted such amount from the payment that was to be made March 1, 1920, which reduced said amount to $12,360. Judgment was entered, requiring defendant to pay plaintiff $12,360 and that he perform in accordance with the terms of the contract on or before March 1, 1921, and that upon failure to pay and perform such conditions defendant should forfeit the $2,000 he paid on the purchase price, and that all his rights in the premises be terminated.

Numerous assignments of error, based on admission and exclusion of testimony, are urged by defendant. 'All of these have been carefully considered, but, being of the opinion that none constitute prejudicial error, we shall not discuss the same.

Defendant contends that the railroad right of way constituted an incumbrance upon the land. This we think is true. Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426; Beach v. Miller, 51 Ill. 206, 2 Am. Rep. 290; Tandy v. Waesch, 154 Cal. 108, 97 Pac. 69; Burk v. Hill, 48 Ind. 52, 17 A. Rep. 731; 15 C. J. 1276.

Defendant further contends that, by reason of the railroad right of way and by reason of the fact that the $8,000 mortgage was not paid by March I, 1920, he was entitled to rescind the contract. Our statute (section 906, R. C.) specifies what must be done in order to entitle a party to a contract to rescind:

"He must rescind promptly, upon discovering the facts which entitle him to rescind."

This, it is clear, defendant failed to do. On the contrary, he continued in the actual possession of the premises for nearly a year after he knew the facts upon which he now seeks to base a right to rescind.

The court found that by reason of the land taken for right of way there...