Straub v. Lessman

• Decision Date: 26 March 1987
• Docket Number: No. 11297,11297
• Citation: 403 N.W.2d 5
• Parties: Lucille B. STRAUB, Plaintiff and Appellee, v. Patrick H. LESSMAN and Wendy Lessman, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 5

403 N.W.2d 5

Lucille B. STRAUB, Plaintiff and Appellee, v. Patrick H. LESSMAN and Wendy Lessman, Defendants and Appellants.

Civ. No. 11297.

Supreme Court of North Dakota.

March 26, 1987.

Baer & Asbridge, Bismarck, for plaintiff and appellee; argued by Richard B. Baer.

Thomas M. Disselhorst, Bismarck, for defendants and appellants.

LEVINE, Justice.

Patrick and Wendy Lessman appeal from a district court summary judgment cancelling a contract for deed. We affirm.

During March 1981 Lucille Straub and her husband, Walter, who is now deceased and not a party to this action, sold approximately 1,128 acres of farmland to the Lessmans for a purchase price of $253,829.25 under a 20-year contract for deed at 8 percent interest. The Lessmans made a down payment of $73,610 and were to make annual installments of $18,358 until the balance of the purchase price was paid.

The 1983 and 1984 installments were not paid on time. When the Lessmans failed to make a timely 1985 installment, the Straubs agreed to accept a reduced payment of $14,000 for 1985, and the parties executed a renegotiated contract for deed on December 11, 1985. The new contract provided that the purchase price balance would be paid in 17 annual installments at 8 percent interest with the first installment due on March 15, 1986. The Lessmans did not make the 1986 payment by that date, and Straub then filed an action in district court seeking to cancel the contract for deed. Upon Straub's motion, the district court granted a summary judgment cancelling the contract for deed and setting a two-month redemption period for the Lessmans to redeem the property by paying the entire remaining balance with interest.

The Lessmans assert on appeal that the trial court erred in granting summary judgment because there are material issues of fact regarding their "confiscatory price" defenses under Chapter 28-29, N.D.C.C. In Federal Land Bank v. Anderson, 401 N.W.2d 709 (N.D.1987), we held that if a party fails to adequately raise a material factual issue concerning the confiscatory price defenses, summary judgment is appropriate. In this case the Lessmans did not raise these defenses below; nor have they provided an adequate explanation for their failure to do so. The Lessmans also assert that this court can provide relief under Chapter 28-29, N.D.C.C., even though the trial court has not been requested to provide such relief. Although this court has authority to provide relief under Chapter 28-29, N.D.C.C., we will not do so where the party seeking relief has failed, without justification, to raise the issue before the trial court. Consequently, we conclude that the Lessmans have not preserved the issue for review on appeal.

The Lessmans assert that the one-year redemption period under Chapter 32-18, N.D.C.C., should apply and that the trial court abused its discretion in providing only a two-month redemption period. It is well settled in this state that cancellation of a contract for deed by notice pursuant to Chapter 32-18, N.D.C.C., is not an exclusive remedy, and the seller may elect to cancel the contract by action whereby written notice of intent to cancel the contract is not required. Schumacher Homes, Inc. v. J. & W. Enterprises, 318 N.W.2d 763 (N.D.1982). Unlike cancellation by notice, when a seller chooses to cancel by action, there is not a statutorily prescribed period for redemption and that matter is left within the sound discretion of the district court. Bender v. Liebelt, 303 N.W.2d 316 (N.D.1981).

Under the original contract for deed, the Lessmans on...