Skinner v. Scholes
| Decision Date | 10 February 1930 |
| Citation | 229 N.W. 114,59 N.D. 181 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Grant County, Berry, J. In an action to rescind a contract for the sale of land, the defendants had judgment and plaintiff appeals.
Reversed and judgment ordered for plaintiff.
Edward S. Johnson and Scott Cameron, for appellant.
Objections to the mode of an offer of performance are waived by the the creditor, if not stated at the time the offer is made. Ugland v. Farmers & M. State Bank, 23 N.D. 356, 137 N.W. 572.
When time is the essence of the contract, if a party seeks to take advantage of the position upon the failure of the other to strict performance, he must do so promptly upon such failure. Keator v. Ferguson, 20 S.D. 473, 107 N.W. 678.
An assignment by the vendee, of a contract for the purchase of real estate creates a privity of estate between the assignee and the original vendor, but a privity of contract. Meyer v. Droegmueller (Minn.) 206 N.W. 391.
The only covenants that run with the land are covenants of warranty for quiet enjoyment, and for further assurance on the part of the grantor. Gale v. Shillock (Dak.) 30 N.W. 138.
The effect of the dissolution of a corporation is to terminate its existence as a legal entity, and render it incapable of suing or being sued as a corporate body or in its corporate name. Crossman v. Vivienda Water Co. (Cal.) 89 P 335.
"Any right existing in another to the use of the land whereby the owner is restricted is an encumbrance within the legal meaning of the term." Foster v. Scott, 136 N.Y 577, 18 L.R.A. 543, 32 N.E. 976.
"The existence of an encumbrance does not depend upon the extent or the amount of the diminution of value." Makey v Harmen, 34 Minn. 168, 24 N.W. 702.
The right in a certain named company to enjoy oil and asphalt rights for a period of ten years from a certain date constitutes an encumbrance. Flood v. Graham, 61 Fla. 207, 54 So. 456, Ann. Cas. 1912D, 1137.
"A conveyance to a third person the land, which thereby puts it of the land, which thereby puts it out of the yendor's power to perform his contract with the purchaser, entitled the purchaser to rescind the contract and recover back the purchase money paid, . . ." 39 Cyc. 2013.
Sullivan, Hanley, & Sullivan, for respondents.
"An agreement to make, execute and deliver a good and sufficient deed of conveyance of the premises was held to be performed by the tender of a good and sufficient deed of the premises executed by the parties in whom the legal title to the premises then was." 27 R.C.L. 522; 37 L.R.A.(N.S.) 1125.
"Ordinarily the purchaser is entitled to a conveyance from the vendor unless it is otherwise stipulated in the contract." 27 R.C.L. § 249.
"A vendor has the right to assign his rights under the contract so as to entitle the assignees to enforce the same, at least in the absence of a covenant or stipulation in the contract." 39 Cyc. 1663; Big Bend Land Co. v. Hutchings, 128 P. 652.
". . . The assignee acquires all the rights which the vendor had against purchaser by reason of a contract for sale." 39 Cyc. 1664.
". . . . as a rule the assignment of a title bond or other contract for the sale of land acquires all the rights of his assignor." 39 Cyc. 1668.
Where one accepts an abstract and retains it for a long period of time without objection, he is generally held to have waived any objection thereto. Mota v. Business Men's Asso. 157 N.Y. 201, 45 L.R.A. 666; Pfister v. Seme, 202 N.W. 476; Prichard v. Mulhall, 140 Iowa 1, 118 N.W. 43.
A deed to a person named, or to his heirs, is not void; it is a deed in the alternative. 1 Jones, Real Prop. § 223; Ready v. Kersley, 14 Mich. 215.
It is not absolutely necessary that the grantee be named at all, provided he is so described that he can be clearly ascertained. 1 Jones, Real Prop. §§ 223-225; Gillespie v. Rogers (Mass.) 16 N.E. 711.
The defendants were entitled to a reasonable time after demand to tender deed. Parte v. Montgomery, 1 N.W. 844; McNama v. Penjelly, 59 N.W. 1055.
Where the vendor offers to perform, that is sufficient. Summers v. Hedenberg, 198 Ill.App. 460, affirmed in 277 Ill. 368, 115 N.E. 566.
This is an action to cancel an executory contract for the sale of land and for other relief. The trial court having ordered judgment in favor of the defendants, the plaintiff appeals and demands a trial de novo.
The facts material on this appeal, as we find them are substantially as follows: The defendant William Scholes was engaged in the banking business in South Dakota. He organized a corporation, The Scholes Land Company, under the laws of that state to handle land deals. He and his wife, the defendant Lillian A. Scholes, were the sole stockholders. He was the president of the corporation and his wife the secretary. On June 1, 1916, Scholes, acting for the corporation, sold to the plaintiff a section of land situated in what is now Grant county, North Dakota. The sale was on contract. The price was $ 6,000, $ 500 to be paid in cash, the remainder at the expiration of ten years with interest at the rate of 6 per cent per annum payable annually, and the purchaser to pay all taxes levied on the land subsequent to 1916. Among other things the contract provided: The contract was executed and delivered. The cash payment of $ 500 was made. The abstract showing the then record title to the premises was delivered to the plaintiff and the plaintiff went into possession. Thereafter he continuously occupied and used the land until June 1, 1926. In the meantime he paid the interest as the same fell due. He paid the taxes up to 1925 in amounts totaling $ 1294.41. In 1918 he built fences on the land at a cost of $ 350. These fences remained on the land on June 1, 1926, but were somewhat in disrepair and were then of the value of $ 200. This land was railroad land. It later belonged to the Northwestern Improvement Company. That company contracted to sell it to one Patterson. Patterson assigned the contract and after various assignments it came to the Scholes Land Company, which took deed to the property. The Improvement Company in its deed reserved mineral, gas, and oil rights. The various assignments of the Patterson contract were not of record. In 1919 the Scholes Land Company deeded the property to Mrs. Scholes and also assigned the contract of sale to her. In 1920 the company having disposed of all its property voluntarily dissolved and went out of existence. No notice was given to the plaintiff of the assignment of the contract or the conveyance of the title to Mrs. Scholes, or of the dissolution of the corporation. Plaintiff first learned that the corporation had been dissolved on May 24, 1926, and at about the same time he learned that the land had been transferred to Mrs. Scholes. All payments of interest as they were made annually by the plaintiff were sent by mail addressed to the land company and were received either by Mr. or Mrs. Scholes and such payments were endorsed on the contract. Mrs. Scholes received the proceeds of the several payments made subsequent to the dissolution of the corporation. As the time approached for the final payment there was some correspondence between the plaintiff and Scholes. Plaintiff objected on account of the mineral reservations and because the assignments of the Patterson contract were not of record. Then it was that plaintiff learned that the corporation had been dissolved and that Mrs. Scholes held title to the land. He at once indicated that he would insist on a deed from the land company. On June 1, 1926, the day when the final payment fell due, plaintiff tendered Scholes a draft for the amount required to satisfy the contract and demanded a deed from the land company. Scholes told him that he would not receive that money as it was impossible to deliver a deed from the land company but made no objection to the form of the tender. Scholes also told the plaintiff that Mrs. Scholes would execute and deliver her deed in satisfaction of the contract. Plaintiff, however, refused to accept a deed from Mrs. Scholes. He also promptly gave notice of rescission of the contract and tendered possession of the property. Under these circumstances the plaintiff, claiming that the land company had voluntarily put it out of...
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