Squire v. Robertson

• Decision Date: 02 November 1911
• Parties: SQUIRE v. ROBERTSON.
• Court: U.S. District Court — District of South Dakota

191 F. 733

SQUIRE v. ROBERTSON.

United States Circuit Court, D. South Dakota, Southern Division.

November 2, 1911

Campbell & Walton, for plaintiff.

F. F Grant, Albert C. Steck, and Chester W. Whitmore, for defendant.

ELLIOTT District Judge.

On the 24th day of June, A.D. 1911, the plaintiff above named commenced an action in the circuit court of Edmunds county, S.D., against the defendant, W. H. Robertson. Summons was issued on that date, and the same, together with the complaint and proof of service upon the defendant, W. H Robertson, at the city of Ottumwa, county of Wapello, in the state of Iowa, on the 1st day of July, 1911, were duly filed in the office of the clerk of the circuit court in and for said Edmunds county, S.D., on the 10th day of July, A.D 1911.

Thereafter, and in due time, the defendant, W. H. Robertson, by his attorneys above named, filed a petition in due form, for the removal of said cause, together with a proper bond, and prayed that said court proceed no further in said action, except to make an order of removal thereof to the Circuit Court of the United States for the District of South Dakota, Northern Division. Said petition recited, in substance, that the said action was of a civil nature; that the matter in dispute between the parties to said action exceeded the sum of $2,000, exclusive of interest and costs; that the controversy in said action and all issues of both law and fact were wholly between citizens of different states, and which can be fully determined between them; that the plaintiff was a citizen and resident of the state of South Dakota, and defendant a citizen and resident of the state of Iowa; that the time to answer or plead had not expired.

Thereafter said bond was duly approved and an order of removal entered and a copy of the record duly transmitted by the clerk of the said state court to the clerk of the United States Circuit Court for said district.

Thereupon the attorneys for the plaintiff moved the court and were granted an order to show cause why an order should not be made by this court remanding said cause to the circuit court in and for Edmunds county, in the Tenth judicial circuit of the state of South Dakota, for trial, which order to show cause was duly served upon the defendant and his attorneys, who appeared on the date named therein and resisted remanding said cause to the state Circuit Court for trial.

The plaintiff states his cause of action as follows (omitting title):

The plaintiff for his cause of action shows to the court:

(1) That he is and was at all the times hereinafter mentioned engaged in the real estate business at Aberdeen, S.D., and doing business under the name and style of Squire Land & Loan Company.

(2) That on June 10, 1910, he was the owner of the following described real estate, to wit, The west half of section twenty-two (22), in township one hundred twenty-three (123), north, of range sixty-six (66) west, in Edmunds county, South Dakota, and still is the owner of the same. That on June 10, 1910, he entered into a contract with the defendant for the sale to the defendant of the above-described real estate, which contract was in writing, and is in words and figures as follows, to wit:

'Earnest Money Contract of Sale.

'June 10, 1910.

'Received from W. H. Robertson of Ottumwa, Iowa, note due demand; cash, $500, total, $ . . . , as earnest money and in part payment for the purchase of the following described property, situated in the county of Edmunds and state of South Dakota, viz.:

'The west half of section twenty-two (22), township one hundred twenty-three, range sixty-six, which we have this day sold and agreed to convey to

said W. H. Robertson for the sum of twelve thousand eight hundred dollars ($12,800) on terms as follows, viz.:

$500 in hand paid as above, and

$1,000 in 15 days;

$1,000 in 30 days;

$1,000 Jan. 1, 1911;

$1,000 June 10, 1911;

$1,000 June 1, 1912;

$1,000 June 1, 1913;

$2,300 June 1, 1914;

$4,000 mortgage assumed running 5 years, and drawing 6 1/2 %, 1/2 % to be rebated with interest in deferred payment at 6% per cent. from date, payable annually.

'Interest to commence from date of this contract. Purchaser assumes taxes as they come due after the date of this contract. When final settlement is made warranty deed is to be furnished, and also an abstract showing good title to said land.

'In case any property is taken as a partial payment on above described land, same is subject to investigation and acceptance of M. Squire.

'And it is agreed that if the title to said premises is not good and cannot be made good within ninety days from the date when the deed is to be delivered, this agreement shall be void, and the above earnest money refunded. But if the title to said premises is then good, in the name of the grantor, and said purchaser refuses to accept the same, said earnest money shall be forfeited to the Squire Land and Loan Co. as liquidated damages.

'And said sale in all its terms and conditions as herein contained is made subject to the approval of the owner of said land, and should he disapprove of the same, then and in that case, the funds paid shall be returned and Squire Land and Loan Co. released from any liability. Squire Land and Loan Co.

'Drawn by M. Squire.

'I hereby agree to purchase the said property for the price and upon the terms mentioned, and also agree to the conditions of forfeiture and all other conditions therein expressed. W. H. Robertson. (Seal.)'

(3) That said defendant at the time of the execution of said contract paid to the plaintiff the sum of five hundred ($500.00) dollars to apply thereon, and later made the payment of one thousand ($1,000.00) dollars provided in said contract to be paid fifteen (15) days after the date thereof, and still later paid to the plaintiff the further sum of one thousand ($1,000.00) dollars provided in said contract to be paid in thirty days after the date thereof, making in all the sum of twenty-five hundred ($2,500.00) dollars paid by said defendant upon said contract.

(4) That the defendant has wholly failed and neglected to pay the sum of one thousand ($1,000.00) dollars and interest thereon which became due under the terms of said contract, on January 1, 1911, and has wholly failed and neglected to pay the sum of one thousand ($1,000.00) dollars with interest thereon, or any part thereof, which became due under the terms of said contract, on June 10, 1911, and that there is now due and unpaid from the defendant to the plaintiff under the terms of said contract the sum of two thousand ($2,000.00) dollars, with interest thereon from June 10, 1910, at the rate of six (6%) per cent. per annum, making in all now due and unpaid under the terms of said contract the sum of two thousand one hundred twenty-four and 34-100 ($2,124.34) dollars; and there is to become due thereon, pursuant to the terms of said contract, the further sums of:

$1,000.00 on June 1, 1912, with interest thereon at 6% from June 10, 1910.

$1,000.00 on June 1, 1913, with interest thereon at 6% from June 10, 1910.

$2,300.00 on June 1, 1914, with interest thereon at 6% from June 10, 1910.

And a mortgage for $4,000.00 upon said land assumed by the defendant.

(5) That plaintiff is ready, able, and willing to, and has up to this time complied with all the conditions of said contract by him to be performed, and that demand has been mad upon the defendant to pay the amounts now past due, which demand he has failed, neglected, and refused to comply with.

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