Williams v. Hefner
| Decision Date | 23 March 1931 |
| Docket Number | 6726. |
| Citation | 297 P. 492,89 Mont. 361 |
| Parties | WILLIAMS et al. v. HEFNER. |
| Court | Montana Supreme Court |
Appeal from District Court, Ravalli County; James M. Self, Judge.
Action in ejectment by Almira Williams and others against William Hefner, in which the defendant filed cross-complaint. Judgment for defendant, and plaintiffs appeal.
Judgment set aside and cause remanded, with directions.
E. C Kurtz, of Hamilton, and Harry H. Parsons, of Missoula, for appellants.
O'Hara Madeen & Grant, of Hamilton, for respondent.
This is an action in ejectment. It was tried to the court without a jury, resulting in judgment and decree in favor of defendant from which plaintiffs have appealed.
The complaint is in the usual form. It alleges plaintiffs' ownership of 240 acres of certain described real estate situated in Ravalli county, wrongful possession by defendant, and claim for damages. The answer contains a general denial and affirmative defenses and cross-complaints.
In general, the affirmative defenses allege that plaintiffs sold the property in question to defendant under a written contract; that defendant has paid $3,000 as part of the purchase price, and is willing to pay the balance of $3,000 due under the contract, but that plaintiffs have failed to deliver a marketable title and have breached the contract; that defendant has expended $1,500 for improvements, which, together with the purchase price paid, he is entitled to have returned to him and to remain in possession until it is paid. The cross-complaints reiterate the allegations of the affirmative defenses, and allege that defendant has a lien on the property for the value of the improvements and for the payments made on the purchase price, less the value of the use and occupation during the time he was in possession of the property.
The prayer of the answer is for judgment for the amounts paid on the purchase price, with interest, for $1,500 expended for improvements, less the value of the use and occupation of the premises, that these sums be declared to be a lien upon the property, for the foreclosure of the lien, and for a deficiency judgment in case the proceeds of the sale are not sufficient to discharge the lien, and that defendant have possession until expiration of the time for redemption from the foreclosure sale.
Plaintiffs' general demurrer to the answer was overruled. The reply admits the making of the contract of sale and that defendant paid $3,000 as part of the purchase price, but denies the other allegations of the answer and cross-complaints.
The evidence need not be here reviewed. It is sufficient to say that it sustains the findings of fact which we deem material in consideration of the questions involved.
The court found that Almira Williams, Martha Keyes, John Christy, Fred Christy, Alex Christy, Tom Christy, and Charles Christy, as the sons and daughters and only heirs of George Christy, deceased, succeeded to the rights of George Christy, former owner of the property involved. Plaintiff Mamie Christy is the wife of John Christy, and plaintiff Mary Christy is the wife of Tom Christy. On March 31, 1927, plaintiff John Christy applied for, and was thereafter granted, letters of administration upon the estate of Charles Christy, and thereafter a decree of distribution was entered, distributing the one-seventh interest of Charles Christy in the property to the plaintiffs, other than Mamie Christy and Mary Christy, share and share alike; that Charles Christy left his home at Woodside, Ravalli county, in July, 1903, stating he was going to North Dakota, and has not been heard from since that time; that in 1927 his estate was administered solely upon the presumption that a person not heard from in seven years is dead; that, prior to the death of George Christy, he and his wife, who is now deceased, made, executed, and delivered to the Northern Pacific & Montana Railroad Company a warranty deed covering a parcel of land containing 3.58 acres, for a right of way 100 feet in width across the lands here involved; and that on March 31, 1927, plaintiffs and defendant entered into a contract whereby plaintiffs agreed to sell, and defendant to buy, the property.
The contract describes the land by subdivisions, and makes no mention of the railroad right of way. By the agreement it was stipulated that plaintiffs would sell and convey "by good and sufficient deed" the described land. Defendant agreed to pay $500 down, $2,750 when the deed would be placed in escrow, and $2,750 one year thereafter. The agreement provided that the estate and interest of Charles Christy should be probated and distributed, the grantors agreeing that they would commence proceedings therefor during the month of April, 1927, and to conclude the proceedings as expeditiously as possible, and thereafter place a deed in escrow with the Citizens' State Bank of Hamilton to be delivered to defendant upon payment of the full purchase price of the land, with interest. Defendant agreed to pay all taxes on the land, and was to have possession not later than April 5, 1927. Time was made of the essence of the contract, and it was stipulated that in case of default on the part of the defendant in the payment of the purchase price, or in the payment of taxes, the plaintiffs should have the right of re-entry.
Defendant paid to plaintiffs $500 on March 31, 1927, and took possession of the property. In October, 1927, defendant paid $2,500. In April, 1929, defendant, in seeking to obtain a loan with which to pay the balance due on the contract, was advised that plaintiffs could not convey title free from doubt, and on May 28, 1929, defendant served written notice on plaintiffs to the effect that he was ready, able, and willing to pay the balance due under the contract as soon as plaintiffs furnished marketable title, and pointed out in the notice that the deed furnished by plaintiffs was not a good and sufficient deed because plaintiffs had no marketable title to the undivided one-seventh interest of Charles Christy. On June 25, 1929, plaintiffs served written notice on defendant to the effect that they had executed a deed and placed it in escrow to be delivered to defendant upon payment of the balance of $3,000 due under the contract, and that, unless it was paid within one month, the agreement would be treated as null and void, and that action to recover possession would be commenced without further notice. The deed which had been placed in escrow was dated September 1, 1927, and made no reference to the railroad right of way.
The court found that the buildings and other improvements, including the clearing and plowing of land made by defendant upon the property, were of the value of $813.40; that the interest on the money paid by defendant to plaintiffs amounted to $586.60; that the taxes on the property are unpaid and delinquent; that the rental value of the property during the time defendant was in possession to the date of the trial amounted to $1,400.
From the findings the court concluded as matters of law: (1) That plaintiffs cannot give defendant a title free from reasonable doubt; (2) that the conveyance to the railroad company is a breach of the covenant against incumbrances; (3) that plaintiffs are trustees of the legal title for the defendant to the extent of the payments made by defendant to plaintiffs; (4) that defendant is entitled to a judgment against plaintiffs for the moneys paid, amounting to $3,000; (5) that defendant is entitled to a lien upon the property as security for the repayment of the $3,000; (6) that defendant is entitled to his costs. Judgment was entered accordingly.
The first question for consideration is whether the court erred in admitting evidence, over plaintiffs' objection, in support of the affirmative defenses and cross-complaints. The objection was upon the ground that the allegations were insufficient to constitute defenses or cross-complaints in an action in ejectment. As noted above, in effect they allege that plaintiffs have breached their contract, in that they have failed to tender a good and sufficient deed to the property, and that therefore defendant is entitled to a judgment for the purchase price paid, together with interest, and the value of improvements made, less the reasonable value of the use and occupation of the land during the time the defendant has been in possession.
In legal effect, defendant by his answer seeks a rescission of the contract of purchase. That is the relief awarded by the court. Defendant sought and obtained a decree placing him in statu quo, but he did not surrender possession of the property or offer to do so. That he must surrender possession before being permitted to rescind is clear under section 7567, Revised Codes 1921, which makes it incumbent upon the party seeking to rescind a contract to "restore to the other party everything of value which he has received from him under the contract, or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so." See, also, Como Orchard Land Co. v. Markham, 54 Mont. 438, 171 P. 274; Fontaine v. Lyng, 61 Mont. 590, 202 P. 1112; note 34 A. L. R. 1325; 27 R. C. L. 654; 39 Cyc. 1424; 25 Cal. Jur. 723. And the pleading must allege an offer to restore the premises. 25 Cal. Jur. 728. Defendant cannot rescind the contract and at the same time affirm it. Advance-Rumely Thresher Co. v. Terpening, 58 Mont. 507, 193 P. 752. He cannot retain possession by virtue of the contract, thus treating the contract as subsisting, and at the same time seek its rescission or recover damages for its breach by plaintiff. Jordan v. Morony, 250 Mich. 593, 231 N.W. 80.
While ejectment will not...
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