Robinson v. Cheney
| Decision Date | 25 August 1885 |
| Parties | ALEXANDER ROBINSON, APPELLEE, v. PRENTISS D. CHENEY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from Johnson county. Heard below before BROADY, J.
AFFIRMED.
L. W Colby, for appellant.
B. F Perkins and S. P. Davidson, for appellee.
This is an action to enforce specific performance of a contract for the sale of the S. 1/2 of the S. E. 1/4 and the S. E. 1/4 of the S.W. 1/4 of Sec. 13, and the N. E. 1/4 of the N. E. 1/4 of Sec. 24, in T. 4 N., R. 9 E., in Johnson county. The contract of sale is somewhat peculiar, and is as follows:
This indenture, made this twenty-seventh day of August, in the year of our Lord one thousand eight hundred and eighty, between Prentiss D. Cheney of Jersey county, Illinois, party of the first part, and Alexander Robinson, of Johnson county, Nebraska, party of the second part, witnesseth, that in consideration of the stipulations herein contained and the payments to be made as herein specified, the first party doth by these presents demise and let to the second party the possession and use of the land herein mentioned, and also contracts, bargains, and agrees to sell to the said second party said premises, situate and being in the county of Johnson, in the state of Nebraska, known and described as follows, to-wit: The south half of the south-east quarter, the south-east quarter of the south-west quarter of section No. twenty-four (24), all in township No. four (4) north, range No. nine east of the sixth principal meridian. The sum agreed upon for the possession, use, occupancy, and control of said land is $ 100 yearly, which is represented and included in the notes executed by said second party, described herein, and also the whole amount of the taxes that are or may be assessed against said land. The purchase price of said land is eleven hundred and twenty dollars, of which payment has been made of one hundred and twenty dollars at the execution of the contract. The balance is to be paid without notice or demand thereof in ten annual payments at the times specified in twenty certain promissory notes of even date herewith, signed by Alexander Robinson payable to the order of P. D. Cheney, one note being for one hundred dollars due one year after date. One note for one hundred dollars, due two years after date. One note being for one hundred dollars, due three years after date, and seven other notes for $ 100, each due respectively in 4, 5, 6, 7, 8, 9, 10 years after date. Which ten are the principal notes, the other ten notes being for the yearly interest, viz.: first note $ 60, second note $ 54, third note $ 48, fourth note $ 42, fifth note $ 36, sixth note $ 30, seventh note $ 24, eighth note $ 18, ninth note $ 12, tenth note $ 6, due consecutively in one, two, three, four, five, six, seven, eight, nine, and ten years after date, all payable at the office of Russell & Holmes, Tecumseh, Neb. without interest before due, and with ten per cent per annum after maturity.
And the said second party, in consideration of the premises, hereby agrees to make punctual payment of the above sums of principal and interest as each of the same respectively becomes due, and will also regularly and severally pay all the taxes and assessments against said land.
Said Alexander Robinson agrees within one year to build a house, and improve and cultivate the within described land. The crops now growing on said land are reserved to the said P. D. Cheney.
Robinson is to have possession at end of term of tenant in possession.
Robinson is to assume immediate control of the land, subject to the present tenant's rights.
Cheney is to pay tax of 1880 and all former years.
Robinson is to pay tax of 1881 and all after years.
In case the second party, his legal representatives or assigns, shall pay the several sums of money aforesaid punctually, and at the times above limited, and shall strictly perform all and singular the agreement and stipulations aforesaid after their true tenor and intent, then the said first party covenant and agree to make and execute unto the said second party, his heirs or assigns (upon request and surrender of the contract), a deed, conveying said land in fee simple, with the ordinary covenants of warranty, reserving and excepting the right of way that may be demanded for public use for railways or common roads; and it is hereby agreed and covenanted by the parties hereto, that time and punctuality are material and essential ingredients in this contract.
And in case the second party shall fail to pay the taxes, or if the land shall be sold for taxes, or if said second party shall fail to make the payments of money for principal or interest, or to make improvements as herein agreed, upon the terms and at the times herein limited, and to perform and complete all and each of the payments, agreements, and stipulations herein mentioned, strictly and literally, without any failure or default, then this contract, so far as it may bind said first party shall become null and void, and all the rights and interest hereby created, or then existing, in favor of the said second party, or derived from him, shall utterly cease and determine, and the right of possession, and equitable and legal interest in the premises hereby contracted, shall revert to and revest in said first party, without any declaration of forfeiture or any act of re-entry, or any other act of said first party to be performed, and without any right of said second party of reclamation or compensation for moneys paid or services performed. And in case of the forfeiture or annulling of this contract, the said second party shall still be bound and liable to pay all taxes then due or assessed against said land; also, all installments of principal or interest that may then be due on this contract, to be regarded and considered as rent for the use of said land; also, no fixtures or improvements, temporary or permanent, shall be removed from said land.
And the said first party shall have the right, immediately upon the failure of the second party to comply with the stipulations herein, to enter upon the land aforesaid and take immediate possession thereof, together with all the fixtures, privileges, and appurtenances thereon, or in any wise thereunto belonging or appertaining. And the said second party hereby covenants and agrees to surrender unto the said first party, or his order or his assigns, the said land and appurtenances without delay or hindrance, and no court shall relieve the said second party from a failure to comply strictly and literally with this contract.
It is further agreed and understood that whenever one-half of the purchase price mentioned shall be paid with all accrued interest and taxes the said first party shall execute the deed as herein contracted for and take notes and a mortgage for the remaining payments which shall run the unexpired time as herein fixed.
No modification or change of this contract can be made except by entry hereon in writing signed by both parties. An oversight...
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