Steensland v. Noel
| Decision Date | 17 January 1912 |
| Citation | 134 N.W. 207,28 S.D. 522 |
| Parties | STEENSLAND v. NOEL. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Lincoln County; Joseph W. Jones, Judge.
Action by John Steensland against Frank Noel. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
Asa Forrest, Jr., and E. R. Winans, for appellant.
C. B Kennedy, for respondent.
Appeal from the circuit court of Lincoln county. Action for possession of a quarter section of farm land in Lincoln county of which plaintiff claims to be the owner in fee simple and entitled to possession. The complaint alleges that on or about the 1st day of March, 1909, plaintiff was in possession of said land, and that on or about that date defendant went into possession thereof under an oral lease from plaintiff, for the period of one year, upon agreed terms as his tenant; that on or about April 30, 1909, defendant served upon plaintiff a written notice that he claimed possession of said land as purchaser from plaintiff, and demanding that plaintiff execute and deliver a deed to the land pursuant to an alleged contract of purchase; that plaintiff had never sold or agreed to sell said land to defendant; that the pretended verbal contract of purchase and sale of the land as set forth in said notice, if true in fact, is void in law; that the same is not even true in fact that thereafter on the 9th of June, 1909, plaintiff, being advised that defendant claimed said land adversely to him served upon defendant a notice in writing, terminating the aforesaid lease and demanding possession of the leased premises within thirty days; that defendant has failed to vacate said premises and claims the right of possession thereof under the alleged contract of purchase, denies the plaintiff's right of possession, and claims to hold adversely to plaintiff; that defendant having renounced his right to occupy as a tenant, by reason of his adverse claim of ownership, became a tenant at will, which tenancy was terminated by a notice given pursuant to the provisions of law for the termination of such a tenancy. The complaint also contains other allegations as to plaintiff's rights in the crops grown on the premises which are not material on this appeal. Plaintiff demands judgment for immediate possession of the land and a decree establishing his right thereto, together with certain other relief not material here. Defendant's answer admits service of the notice alleged in the complaint, and that the time set in the notice to vacate said land specified in said notice has elapsed, and that defendant has refused to vacate, and that defendant claims the right of possession by virtue of a contract of purchase and sale.
Defendant further alleges, by way of counterclaim: That on or about the 15th day of August, 1908, plaintiff and defendant entered into an oral agreement, whereby defendant agreed to purchase, and plaintiff agreed to sell, said land and to transfer the same to defendant, and gave defendant immediate possession of the land under said agreement. That said land was substantially all under cultivation except about 20 acres of hay and pasture land. That it was necessary to plow the cultivated land preparatory to cropping for the year 1909, and to build certain buildings thereon necessary to defendant's occupancy thereof. That the terms of said oral contract were as follows: That plaintiff agreed to accept, and defendant agreed to pay, plaintiff the sum of $8,000 as the price of said land; that the defendant should take immediate possession for the purpose of plowing the cultivated land, consisting of about 90 acres, preparatory for the 1909 crop; that defendant should build a house and barn on the land and occupy the same as his home; and it was further agreed that on or before the 1st day of January, 1909, defendant should pay to plaintiff the sum of $1,500 as first payment on the purchase price, and upon said payment plaintiff should make to defendant a deed of conveyance with full covenants of warranty, and defendant should thereupon deliver to plaintiff a note for $6,500, payable five years after date, with the privilege of paying any amount which defendant should desire, at the time any interest payment became due, and that interest on said note should be due and payable on the 1st day of January each year, at the rate of 5 per cent. per annum. That, pursuant to said contract, plaintiff delivered and defendant took possession of said land, and in the fall of 1908 plowed 90 acres and built upon said land a permanent dwelling house and barn, at a cost of $1,000 for material and labor, and that defendant expended in personal services in improving said farm labor of the value of at least $500. That plaintiff delivered to defendant possession of said land and defendant took possession thereof in August, 1908, pursuant to said oral contract of purchase, and plowed the land as aforesaid, and built the buildings thereon pursuant to and in part performance of said oral contract, relying upon plaintiff's agreement to execute a deed to said land on or before the 1st day of January, 1909. That on and prior to the 1st day of January, 1909, defendant was ready and able to make a payment of $1,500 pursuant to said oral contract, and notified plaintiff that he was ready to execute a note and mortgage for $6,500 in accordance with the aforesaid oral agreement, and demanded that plaintiff execute and deliver a deed to said land as agreed. That plaintiff refused to make said deed or to complete the performance of said oral contract. That the plowing done by defendant on said land was of the reasonable value of $100. That the labor expended by defendant in improving the farm, etc., was of the reasonable value of $500, and that defendant spent and paid out for labor and material in erecting said buildings the sum of $1,000, all of which expenditures were reasonably necessary; that to permit plaintiff, at this time, to claim said contract to be null and void, because not in writing, would amount to a fraud upon defendant. That on the 27th of April, 1909, defendant again tendered performance of said contract by offering to pay plaintiff the sum of $1,500 with interest at 7 per cent. from the 1st day of January, 1907, and to make and deliver to plaintiff a note and mortgage for $6,500, which plaintiff refused to accept. That defendant thereupon deposited the said sum to plaintiff's credit in the People's Security Bank of Worthing, together with the note and mortgage for $6,500, to be delivered to plaintiff upon his executing a deed to defendant as agreed upon, which money, note, and mortgage ever since have remained on deposit in said bank. That defendant has done and performed and tendered performance of all the conditions of said oral contract, and demands that plaintiff be required to specifically perform said oral contract, and prays general relief; and further, if the court finds that the oral contract aforesaid cannot be specifically enforced, that the court take an account of the improvements placed on said land, and of the crops grown thereon during the year 1909, and find the value thereof, that the value of the occupation of said farm be set off against the improvements and labor placed thereon by the defendant, that defendant have judgment for the difference, and that the ownership and right of possession be adjudged to defendant.
To this counterclaim plaintiff filed a reply which is, in effect, a general denial, and further alleges that any building or improvements placed upon said land was without consent or knowledge of plaintiff; that all of said improvements do not exceed the sum of $500 in value; that the occupancy of said land is worth the sum of $400; that defendant was given ample time, after the service of the notice terminating his tenancy at will, to remove from said land any improvements placed thereon; that by failing to remove said improvements he is estopped from claiming the value thereof from plaintiff. Denies that defendant deposited the sum of $1,500 to plaintiff's credit in the People's Security Bank at Worthing, or that defendant has performed or offered to perform the conditions of his oral contract. Plaintiff, replying further to defendant's counterclaim, alleges that the contract of which defendant demands specific performance is void, because the same nor any note or memorandum thereof is not in writing as required under the statute of frauds, and specifically denies any part performance of the contract.
The trial court made and entered findings of fact and conclusions of law and a judgment favorable to defendant, decreeing specific performance of the contract. Plaintiff moved for a new trial upon the grounds of insufficiency of evidence to sustain the findings, conclusions of law, and the judgment and for errors occurring at the trial excepted to by plaintiff. Appellant has placed in the record some 35 assignments of error, but has grouped together and discussed only such as present the question of the sufficiency of the evidence to justify the findings, conclusions, and judgment. The particulars in which the evidence is alleged to be insufficient are set out at considerable length and under eight distinct heads or subjects in assignment No. 35, which is "Insufficiency of the Evidence to Sustain the Findings, Conclusions, and Judgment." In his brief appellant discusses the questions raised by this assignment under two heads: ...
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