Staab v. Skoglund

• Decision Date: 17 October 1975
• Docket Number: No. 11340,11340
• Citation: 234 N.W.2d 45,89 S.D. 470
• Parties: Vernnena STAAB, Plaintiff and Respondent, v. Alden SKOGLUND and Delores Skoglund, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 45

234 N.W.2d 45

89 S.D. 470

Vernnena STAAB, Plaintiff and Respondent, v. Alden SKOGLUND and Delores Skoglund, Defendants and Appellants.

No. 11340.

Supreme Court of South Dakota.

Oct. 17, 1975.

Wally Eklund, Gregory, William J. Srstka, Jr., Pierre, for plaintiff and respondent.

E. Steeves Smith, Tinan, Carlson, Padrnos & Smith, Mitchell, for defendants and appellants.

WOLLMAN, Justice.

This is an action brought to cancel a warranty deed to certain property in Miner County, South Dakota. The trial court entered judgment setting aside the deed and perfecting title to the property in the plaintiff. Defendant grantees have appealed. We affirm in part, reverse in part and remand the case to the circuit court with directions.

In the year 1959, plaintiff Vernnena Staab (plaintiff) acquired ownership of the NW 1/4 of Section 34, Township 105 North, Range 55 West of the Fifth P.M. in Miner County, South Dakota (the land). Plaintiff lived on the land until 1965 or 1966, when she moved to Seattle, Washington. Defendant Alden Skoglund (defendant) ¹ rented the land from plaintiff on a cash rent basis from and after 1960 until 1967. ² Following some preliminary negotiations in 1967, plaintiff called defendant on the telephone on October 24, 1967, and reached a verbal agreement with him whereby she agreed to sell him the land for $17,500, defendant to make a down payment of $500 and to pay the balance of $17,000 within thirty days. On November 3, 1967, plaintiff called attorney Milton Cameron in Sisseton, South Dakota, and advised him that she had agreed to sell the land to defendant. She related to Mr. Cameron the terms of the sale and asked him to handle all of the details of the transaction for her. Mr. Cameron agreed to represent her in the transaction and asked her to write him a letter stating exactly what she had told him on the telephone.

On that same day, November 3, 1967, Mr. Cameron wrote a letter to plaintiff in which he stated in part that:

'* * * I am writing Mr. Skoglund today and advising him that you desire an immediate down payment of $500.00. The balance of $17,000.00 to be paid on or before the 28th of this month.

'As soon as I have received the Abstract from you I will forward it to the Abstracter for continuation, and in the mean time I will have heard from Mr. Skoglund as to whom he would like it delivered to for examination and opinion. * * *'

Also on November 3, 1967, Mr. Cameron wrote a letter to defendant, which stated in part that:

'I received a telephone call from Mrs. Staab this morning asking me to handle the sale of her farm in Miner County. She advised me that the agreed price was $17,500.00 and $500.00 was to be paid down. She is forwarding me the Abstract of Title to be continued and delivered to the Lawyer of your choice for examination. In addition to the $500.00 down payment she further advised me that there is a balance due her for rental of $500.00, which sum she would also expect to be paid on or prior to the completion of the transaction. The balance of $17,000.00 of the purchase price is expected to be paid by the 28th of this month. * * * 'As soon as you receive this letter I wish that you would forward to me the $500.00 payment noting on the check that it is the down payment on the NW 1/4 of Section 34, Twp. 105, N. Range 55, W of the 5th P.M., Miner County, S.D., as well as the same of the Lawyer to whom you wish the Abstract delivered for examination. Also mark the other $500.00 check the payment of the balance of the 1967 rental. * * *'

Also on November 3, 1967, plaintiff wrote a letter to Mr. Cameron, which stated in part:

'I am sending you the abstract. You should get the $500.00 earnest money. I want it closed as soon as possible. He has had plenty of time on this. Be sure and set a dead line. He will try not borrowing money as long as possible.

'Be sure and remind him the Balance of his rent will be due Jan 1, 1968--$450.00 cash. * * * P.S. As I look at the calendar I see Nov 24 look (sic) like a good closing date I know he is going to try and drag this out. He has already had 2 weeks to line up the money on This deal. * * *' (emphasis in original)

On November 4, 1967, defendant sent to Mr. Cameron a check in the amount of $500 payable to plaintiff marked 'down payment on NW 1/4 of Sec. 34.' On November 7, 1967, Mr. Cameron wrote to defendant acknowledging receipt of the $500 check and advising defendant that he had sent the abstract on the land to the abstract company for continuation.

On November 8, 1967, plaintiff wrote Mr. Cameron a letter in which she stated in part that:

'I rec'd your letter and everything is just fine. Hope I have not confused you. The 28th is just fine.

I am sure Mr. Skoglund is going to want more time. I told him on the phone 30 days and that was the 24th of Oct we talked. So he mentioned this loan. I never said anything because I have No intentions of giving him any more time.' (emphasis in original)

On November 7, 1967, plaintiff duly executed the warranty deed which had been sent to her by Mr. Cameron, conveying the land to defendant and his wife, and later mailed it back to Mr. Cameron.

On November 17, 1967, Mr. Cameron wrote to plaintiff acknowledging receipt of the warranty deed and enclosing the $500 down payment check received from defendant. He informed plaintiff that he had heard nothing from either defendant or the abstractor. He enclosed copies of the letters he had written to defendant and to the abstractor. On that same day, however, Mr. Cameron executed a 60 day purchase option as attorney for plaintiff in favor of defendant, apparently to satisfy the requirements of the Farmers Home Administration, from whom defendant had apparently been trying to secure a loan. This option was executed without any authority from plaintiff.

Apparently defendant was unable to raise the balance of the purchase price by November 28, 1967, for that date came and went without payment to plaintiff.

On December 13, 1967, plaintiff cashed defendant's $500 down payment check of November 4, 1967. Apparently nothing further occurred until December 27, 1967, when Mr. Cameron wrote to the abstract company in Howard, South Dakota, inquiring about the bill for the continuation of the abstract. In reply, the abstractor stated that because of an overload of work the abstract to the land had not yet been continued. The abstract was finally continued and delivered to defendant on June 17, 1968.

As has already been noted, plaintiff cashed defendant's $450 check for the balance of the 1967 rent on January 31, 1968. Prior to their October 24, 1967, agreement for sale and purchase, plaintiff had rented the land to defendant for the 1968 crop year and had agreed with defendant that the $900 rental for 1968 would be payable in two installments of $450 each, the first due on September 1, 1968, and the second due on January 1, 1969. Thus the $450 check sent by defendant to plaintiff on January 10, 1968, was clearly referable to the balance due on the 1967 rent and not, as sometimes intimated by plaintiff, to the 1968 rent.

The next activity in connection with the land purchase occurred on June 19, 1968, when Mr. Cameron wrote to defendant, stating in part that:

'The last correspondence I had with you in connection with the farm that you were planning to buy from Vernnena L. Staab was on November 17, 1967, at which time I sent you on Option on the land. * * *

'The real reason for this letter is that this office received a telephone call yesterday in connection with the land and whether or not you were still planning on buying it. * * *

'Your early response would be appreciated in order that I may advise both the interested party and Mrs. Staab.'

Thereafter, defendant obtained a loan from the Federal Land Bank Association at Madison, South Dakota. On August 8, 1968, Mr. Cameron wrote a letter to the manager of the Federal Land Bank at Madison, enclosing the warranty deed that had been signed by plaintiff on November 7, 1967, and informing the manager about the balance due on the purchase price and authorizing him to deliver the deed to defendant after drawing a check payable to plaintiff for the amount of the balance of the purchase price.

Apparently coincidentally, plaintiff wrote a letter to defendant on August 8, 1968, stating:

'Just a note. Please send me the balance 400--on the rent. If you send this Right away we will count the 500.00 as rent.' (emphasis in original)

On August 12, 1968, the manager of the Federal Land Bank Association sent Mr. Cameron a check in the amount of $17,032.53 payable to plaintiff. On August 13, 1968, Mr. Cameron wrote to plaintiff advising her that at long last the land sale had been completed and enclosing the check for $17,032.53.

By letter dated August 19, 1968, plaintiff returned the $17,032.53 check to the Federal Land Bank Association at Madison, stating that 'I have no intention of selling at this price now. * * * ' Also on August 19, 1968, plaintiff informed Mr. Cameron by letter that '* * * I'm not going to fool around any more. I sent the check back to the loan company.'

Following extensive correspondence between herself and the Federal Land Bank Association, plaintiff on July 29, 1970, authorized the Federal Land Bank Association to deposit the $17,032.53 check in an interest bearing account pending the outcome of the dispute between plaintiff and defendant.

Plaintiff filed a complaint against Mr. Cameron and defendant alleging that Mr. Cameron had delivered the warranty deed in question on August 8, 1968, contrary to plaintiff's specific instructions. The prayer for relief asked that the deed be set aside, that plaintiff be given immediate possession of the land, that title to the land be perfected in plaintiff, and that defendant be required to satisfy all liens against the land. ³

Defendant's amended answer alleged that plaintiff through her agent Cameron had agreed to sell the land to...