Willard v. Foster

• Citation: 38 N.W. 786,24 Neb. 205
• Parties: WILLARD v. FOSTER.
• Decision Date: 03 July 1888
• Court: Supreme Court of Nebraska

24 Neb. 205

38 N.W. 786

WILLARD

v.FOSTER.

Supreme Court of Nebraska.

July 3, 1888.

Syllabus by the Court.

The contract set out in the case examined, and held, that time was not of its essence.

The notice set out in the pleadings and evidence held not to apply to the defendant, or to the class of purchasers to which he belonged.

The evidence of fluctuation in the market value of the land embraced in the contract held not sufficient, under the facts and circumstances of the case, to deprive the defendant of his right to a specific execution of the contract for a conveyance of the land, upon the tender and payment pleaded and proved.

Error to district court, Boone county; TIFFANY, Judge.

Ejectment by Delane A. Willard against Elbridge Foster. Judgment for defendant. Plaintiff brings error.M. V. Mondy and W. F. Critchfield, for plaintiff in error.

M. Whitmoyer, for defendant in error.

COBB, J.

The plaintiff in error sued the defendant in error in the district court of Nance county, in ejectment, to recover the possession of a tract of 882 acres of land. The defendant answered, alleging and setting up, as a counter-claim, that “on the 5th day of April, 1880, the plaintiff and one George E. Willard were the owners, as tenants in common, of the property in controversy in this suit,” (describing the same as in the petition.) That “on the said 5th day of April, 1880, the said defendant purchased said tract of land from said plaintiff and the said George E. Willard, for the sum of one hundred and seventy-six and 40-100 dollars. Of said purchase price, defendant paid to plaintiff and said George E. Willard the sum of twenty dollars at the time of said purchase, and the balance of $156.40 the defendant promised to pay in three equal annual payments, with eight per cent. per annum interest thereon until paid. That, at the time of said purchase, the plaintiff and said George E. Willard executed and delivered to defendant their written undertakingand agreement, in which they covenanted and agreed to and with the defendant to grant, assure, and convey unto him the aforesaid tract of land, by good and sufficient deed, at the time of the payment of the balance of the consideration price of said land, as hereinbefore stated. That on the purchase of said land as aforesaid, and upon the execution of said written agreement, plaintiff and said George E. Willard surrendered and delivered to defendant full and complete possession and enjoyment of the said premises, and the defendant entered upon and took possession thereof under and by virtue of said purchase, with the full knowledge and consent of plaintiff and said George E. Willard, and has continued to occupy and enjoy the same to this time by virtue of said contract of purchase. That on the 9th day of May, 1882, two of the annual payments provided for in said written agreement were due and unpaid, and on said 9th day of May defendant, in the village of Genoa, in the county of Nance, duly tendered to plaintiff the amount of said two payments, and on the 15th day of May, 1882, in said village of Genoa, defendant again, in due form, tendered to the plaintiff the amount of said two payments then due and payable according to the terms of said contract; but the plaintiff refused to accept said payments, and still refuses to accept the same, although defendant has kept said tender good, and has repeatedly tendered the said payments to him since the 15th day of May, 1882, to-wit, on the 5th day of September, 1882, and at other times, and on the 5th day of April, 1883, the third and last of said three annual payments, by the terms of said agreement, became due and payable, and on this 5th day of April, in the said village of Genoa, etc., that being the residence and place of business of said plaintiff, this defendant in due form tendered to him the full sum of one hundred and fifty-six and 40-100, with 8 per cent. interest thereon since April, 1880, and demanded a deed for said land, as provided for in the said written contract, but said plaintiff then refused, and has ever since refused, to execute and deliver to defendant a deed for said land. That defendant has kept his said tender good, and now brings the amount due plaintiff into court for his benefit, subject to the orders of the court.” The defendant's answer further states, upon information and belief, that plaintiff has, since the execution of said written contract, acquired, by purchase or otherwise, all of the interest of the said George E. Willard in and to the said land. Wherefore defendant prays that the plaintiff may be required by the decree of the court to receive the sum so tendered, and to execute and deliver to him a good and sufficient deed for said land, etc.

The plaintiff made reply, in which he admitted the making of the written contract with the defendant as set out in the first paragraph of his answer, but denied all the other allegations of the answer; and alleged that on the 9th day of June, 1881, the first annual payment on the said contract being past due and unpaid, the plaintiff gave notice to the defendant, and all other parties, and their assigns, who had contracted with the plaintiff and the said George E. Willard, for the purchase of village lots in and at the village of Genoa, to the effect that, unless the defendant and others should appear within 30 days from said date, and fully pay up and comply with the conditions of said contract of purchase, according to said agreement and the terms thereof, that the same would be declared void and canceled by plaintiff, etc.; to which defendant gave no heed or attention whatever, etc. Also that in the year 1881, when the payment became due on said contract as set forth in said answer, said premises had greatly depreciated in value, and were not worth to exceed the sum of $10 per acre, and that for some time the market value thereof did not exceed said sum; that during said time the defendant declared his intention to abandon said contract for the reason that he could purchase lands for a much less sum than he had agreed to pay in said contract; that afterwards, to-wit, during the spring of 1882, by reason of certain public improvements contemplated and secured to the village of Genoa, and for other reasons, said premises rapidly rose in value, and became of the market value of $50 per acre, and for the first time the defendant offered to comply with his said contract.

The venue of said cause having been, by stipulation of the parties, removed to Boone county, was tried to the court, which found that the defendant was entitled to a specific performance of the said contract, and adjudged that, upon the payment of the sum of $194.75, the sum paid into the clerk of the district court of Nance county by said defendant to said plaintiff, the plaintiff shall convey to said defendant the premises described in the answer. The plaintiff brings the cause to this court on error, and assigns the following errors: (1) The court erred in finding that the defendant, Foster, was entitled to the specific execution of the contract set forth in defendant's answer. (2) The court erred in not finding that the said defendant, Elbridge Foster, had abandoned said contract for the purchase of said premises. (3) The court erred in not finding that the said Elbridge Foster had forfeited all his rights under said contract. (4) The court erred in admitting evidence to show the condition of said premises after the commencement of said action. (5) The court erred in rendering judgment in favor of said defendant, and in decreeing conveyance of the premises described in plaintiff's petition to said defendant by the said plaintiff. (6) The court erred in refusing to decree said contract null and void. (7) The court erred in refusing plaintiff the relief prayed for in said petition and reply.

Upon the trial Delane A. Willard, the plaintiff, was sworn and examined as a witness on his own behalf, and testified that he was the owner of the land in controversy; that he acquired all of the interest of George E. Willard therein before the commencement of this suit; that all he had ever received from the defendant on said contract was $20, received at the time of entering into the contract; that he gave a notice in a newspaper published in Genoa, and gave a copy of such notice, as follows, to-wit: “ Public Notice. Notice is hereby given to all parties and their assignees, who have contracts, either in writing or verbal, with George E. Willard or D. A. Willard, for the purchase of village lots in the village of Genoa, Nance county,...