Sweet v. Purinton

• Decision Date: 18 January 1918
• Docket Number: 4063
• Citation: 166 N.W. 161,40 S.D. 17
• Parties: GILBERT E. SWEET, Plaintiff and respondent, v. E. PURINTON, Defendant and appellant.
• Court: South Dakota Supreme Court

40 S.D. 17

166 N.W. 161

GILBERT E. SWEET, Plaintiff and respondent,

v.

E. PURINTON, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Meade County, SD Hon. Levi McGee, Judge #4063--Judgment modified Harry P. Atwater Attorneys for Appellant. Martin & Mason Attorneys for Respondent. Opinion filed January 18, 1918

McCOY, J.

This action was instituted to have the title to certain lands quieted in plaintiff and for a decree in ejectment against defendant, and, also to recover the sum of $2,000 as rents and profits for the use of said land. The answer alleged that plaintiff, being the owner of the legal title, entered into an agreement with defendant whereby the defendant was to purchase a one-half interest in said, land, and that at the time of entering into said agreement the defendant paid to plaintiff $1,000 in cash, and executed a note for the sum of $3,850 payable to plaintiff, and that the plaintiff then and there executed a deed to the defendant for an undivided one-half interest in said land, and which note and deed were then placed in escrow in the Meade County Bank of Sturgis that defendant by the terms of said agreement was to have the management of said real estate; and, that the proceeds of said property should be divided between the plaintiff and defendant. The defendant also interposed a counterclaim for certain moneys advanced, and for the value of one-half of certain work and labor done and performed by defendant in improvement of said property. The plaintiff replied, setting up certain other obligation's claimed to be due him from defendant.

It appears from the evidence that on the 1st day of April, 1910, the plaintiff was the owner in fee of the legal title of said lands, and on that date entered into an agreement with defendant whereby he agreed to sell an undivided one-half interest therein to defendant for the sum of $4,850, and that defendant then and there paid $1,000 of said purchase price, and that a note for $3.850, according to the terms thereof payable on or before two years from the said date with interest at the rate of 8 per cent. per annum, was then and there executed by defendant and placed in the custody of the Meade County Bank, together with a deed executed by the plaintiff to defendant as grantee of an undivided one-half interest in said land; and along with said deed and note was a written memorandum which, among other things, stated that said bank should hold said deed and note, and that said bank should deliver and turn over said deed to the defendant upon his payment of said note, and which memorandum was executed and signed by plaintiff and said bank. It further appears from the evidence that immediately upon the entering into of said contract the defendant entered into the possession of said real estate, which consisted of about one section of farm and pasture lands, and has ever since been in the use and occupation thereof; that no payments have ever been made by the defendant upon said note; that whatever proceeds have been derived from said farm have been appropriated and kept by defendant; that said defendant made some improvements upon said land; and that plaintiff from time to time assisted in improving said lands.

The trial court made findings substantially as follows: That on the 1st day of April, 1910, at all times thereafter, and at this time, the plaintiff is the owner of the legal title in, fee of the whole of said lands in question; that the defendant has no right, title, or interest or lien or incumbrance upon said real property; that defendant is now in possession of said premises and has been in possession thereof since April, 1910; that he entered into possession thereof by virtue of an option contract to purchase the same, paying $1,000, the balance of $3,850, as evidenced by said note, to be paid in two years from the 1st day of April, 1910; that said note and a deed to defendant were placed in escrow, said deed to be delivered to defendant upon the payment of said note; that defendant has failed and refused and still fails and refuses to pay said note, being the balance of said purchase price, within the time provided for by the terms of said note and agreement, or within a reasonable time thereafter, and that said defendant now wrongfully withholds the possession of said premises from plaintiff; that the plaintiff is entitled to the possession of said property and is also entitled to the sum of $2,100 for the use of said premises during the time defendant has been in possession thereof, and that plaintiff is entitled to recover from defendant $280 for the use of other lands; that defendant is entitled to the return of the $1,000 paid to plaintiff with interest thereon, the whole of which now amounts of $1,415, and that defendant is also entitled to recover from plaintiff $568.92 for improvements and work done upon said premises; that there is a balance due plaintiff from defendant in the sum of $396.08. Upon said findings of fact judgment was rendered decreeing plaintiff to be the sole owner of the legal title in fee of the whole of said lands, and that he recover the immediate possession thereof from defendant, and that plaintiff also recover from defendant the sum of $396.08. From which judgment the defendant appeals.

From an inspection of the record it is evident that the issues were framed and the case tried with but little regard for the rules of pleading or evidence. Some findings were made at variance with the theory of the pleadings; but it does appear that the trial court made findings in harmony with the issues as tried out without objection by either party. We are of the opinion that a trial court should make findings on the theory actually tried out by the parties, when so tried out without objection from either side, and although the theory so voluntarily tried out might vary from the theory as made by the pleadings. This court cannot and should not place itself in the attitude of doctoring up a case for either side and then sending the same back for a new trial on some other and better theory on which it might have been tried in the first instance. We can only deal with the case as it was actually tried out and as it appears from the record before us. None of the attorneys who now appear in the case took part in the trial below. There is no question raised in relation to the pleadings or the issues tried out before the trial court. There is no question raised as to the correctness of the accounting between plaintiff and defendant as made by the findings of the trial court. The contention of the appellant is that the court erred in finding that the said for the purchase of one-half interest in said real estate entered into between plaintiff and defendant was an option contract under which the interest in said land of defendant might be forfeited by reason of his failure to pay the balance of the purchase price according to the terms of said contract; but that the said transaction and...