Speer v. Phillips

• Decision Date: 17 November 1909
• Citation: 123 N.W. 722,24 S.D. 257
• Parties: HORACE S. SPEER, Plaintiff and respondent, v. W. H. H. PHILLIPS and Edward C. Phillips, Defendants and appellants.
• Court: South Dakota Supreme Court

24 SD 257, 123 N.W. 722 (1909)

HORACE S. SPEER, Plaintiff and respondent v W. H. H. PHILLIPS and Edward C. Phillips

Defendants and appellants

South Dakota Supreme Court

Appeal from Circuit Court, Brookings County

Hon. George H. Marquis, Judge

Affirmed

Hall, Lawrence & Roddle

Attorneys for appellants.

Jenkins & Jackson

Attorneys for respondent.

Opinion filed Nov. 17, 1909

McCOY, J.

It appears from the evidence in this case that on the 18th day of September, 1901, a certain written contract was made by and between W. H. H. Phillips and Edward C. Phillips, the defendants, as parties of the first part, and Horace S. Speer, the plaintiff, as party of the second part, wherein and whereby the defendants, as parties of the first part, agreed to sell to the plaintiff the N.W. 1/4 of section 7, township 109, range 49, in Brookings county, S. D., containing 160 acres, and that plaintiff, as said party of the second part, thereby covenanted and agreed to pay to the said defendants a warranty deed, free of all incumbrances, of certain lands situated in Cherry county, Neb., and also the sum of $4,200 in manner following, to wit: The sum of $500 due at or before the execution of this contract the sum of $300 on or before the 1st day of March, 1903; the sum of $300 on or before the 1st day of March, 1904; the sum of $500 on or before the 1st day of March, 1905; the sum of $500 on or before the 1st day of March, 1906; and a first mortgage on said land of $2,100 on or before the 1st day of March, 1906, with interest on the balance until paid at the rate of 6 per cent. per annum, payable on October 1st annually, on the whole sum remaining from time to time unpaid, and to pay all taxes, assessments, and impositions that may be legally levied or imposed on the said land subsequent to the year 1901. The said contract also further provided that in case of the failure of the said party of the second part, this plaintiff, to make either of the payments, or interest thereon, or any part thereof, or perform any of the covenants on his part hereby made and entered into, then the whole of said payments and interest shall become immediately due and payable, and this contract shall at the option of the parties of the first part, the defendants, be forfeited and determined, and, if this agreement shall have been recorded in any register of deeds or recorder's office, then the filing of a declaration of forfeiture, setting forth the fact of such forfeiture, in said office by said first parties, shall be sufficient to cancel all obligations hereunto on the part of the first parties, and fully reinvest them with all right, title, and interest hereby agreed to be conveyed, and the party of the second part shall forfeit all payments made by him on this contract and his right, title, and interest in all buildings, fences, or other improvements whatsoever shall be retained by the said parties of the first part in full satisfaction and liquidation of all damages by them sustained, and they shall have the right to re-enter and take possession of the premises above described; and it is mutually agreed by and between the parties hereto that the time of payments shall be an essential part of this contract. In pursuance of said contract the plaintiff, by a tenant, entered into the possession of the said lands and cultivated and farmed the same during the years 1902 and 1903, and under and by virtue of said contract the plaintiff delivered to defendants a deed of said Nebraska land, paid to the defendants the said sum of $500 due at the execution of said contract and the sum of $210 interest due October 1, 1902, and the sum of $300 due on or before the 1st day of March, 1903, and $168, a portion of the interest due October 1, 1903. This last payment of $168 interest was made about October 28, 1903, and was the last payment ever made by plaintiff, although some time in January plaintiff sent to defendants authority to collect certain sums due plaintiff from his tenant who resided on said land, and that defendants collected some $40 from such tenant, but which $40 was afterwards repaid by defendants to plaintiff. Some time in September, 1903, the plaintiff wrote defendants that, on account of hail having destroyed the greater part of his crops on said land, he would be unable to make the payments under said contract, and asked for an extension of the time for making such payments. On September 29, 1903, defendant W. H. H. Phillips wrote plaintiff:

"Your favor of recent date at hand. If you come on your land and get some plowing done this fall I would be willing to grant some extension of your payments because I should then feel that you would be likely to eventually pay for the place. I would want interest kept up. I have to pay $168.00 Nov. 1st on the $2,100.00 mortgage, being 13 years' interest at 6 per cent. I hope I can depend upon that and balance of your interest as soon as you can. I am paying 8 per cent. on $1,485.00 to Fishback. I am carrying too much land and if I can sell enough to clear up what I owe on it I shall be in no hurry about your payments. I had good results from that farm. You can and besides it will be better if you go on it than if left to a renter. You see how I am situated just now. Most of my crops were hailed out or drowned out and our real estate business has stopped, but I will do the best I can for you."

And on October 7th plaintiff again wrote defendants, as follows:

"Your favor of recent date came to hand in due time and although I have not answered as soon perhaps as you think I should, I have been trying to figure out to comply with your terms, that is, to come on the farm myself. I am having hopes of selling out here now and if I can do that I will be. in a position to get up there in due time for another season, but I don't see how I can get up there to do any plowing this fall. Would it be just the same to you if I could hire some plowing done for me? I need to be here now not so much for the sales but to collect for what I have sold. I will expect to have the $168.00 for you by Nov. 1st, and hope you can see your way clear to put off the balance for a while at least. You said in your letter that if I came on the land you thought you could grant me some extension of the payments, but you did not say just what it would be. Could you put them all one year later, do you think or would they double up on me? I am writing Mr. Watson today in regard to doing some plowing for me;"

and Oct. 16th, 1903, defendant again wrote plaintiff as follows:

"I am willing to give you an extension of time on your payments if you will keep up the interest. Pay the $168.00 this month and the balance on or before the first of January, 1904, then if you cannot make the March payment I will make a new contract with you and give you a new extension for 6 mos., or a year if you need it. In any case I would want to be assured that the farm will be kept in good condition and cropped. I hope that this will be satisfactory to you."

On October 30th defendant again wrote plaintiff:

"Received your favor of the 28th with draft for $168.00 to apply on your interest due Oct. 1st. I see that taxes have not been paid. They are $13.20. Does McKnight have charge of the farm? I will see if he can collect from your crop. I am short just now but will fix it some way for you until you can send the money."

On January 1, 1904, the defendant again wrote the plaintiff, as follows:

"Yours of the 28th came to hand. I hardly know what to advise you. I will be glad to do anything I can to help you in paying for the land. I wrote Mr. Watson to look after your crop and drove down, my son also, yesterday, but we did not find him at home. He is working at every job, he can get to make up for his loss by hail. I drove into the corn, it is soft but ought to have been saved. I do not know whether it will pay now to pick it. You ought to have some responsible person to look after your crops. Hay is something of a drug now, so many cut their hailed grain early and put it up for hay. I will go down and try to get enough out of it to pay for the taxes. Another 1-A tax must be paid March 1st. If you will keep up the interest I will wait on you for the payments. You may be able to sell if you offer the land low enough and not lose what you have put into it, or you may be able to trade your equity for something you can handle. Let me know your lowest price you will take."

Plaintiff then wrote defendants to collect what was coming from the tenant and apply on interest...