Pirrung v. Blankenburg

BROWN, P. J. On April 7, 1920, plaintiff, who owned a tract of land in Codington county containing from 70 to 80 acres, entered into a contract to sell it to defendant for $80 an acre, the purchase price being named as $6,400, based on 80 acres; but the contract contained a provision that the total price was to be adjusted at final settlement on November 1, 1920, “according to the record acreage on file in the office of the county auditor and register of deeds of said county.” Defendant paid' on the contract $1,000 at the time of the execution of the contract and was to pay $1,400, “more or less,” on November 1, 1920, and the balance of $4,000 to be paid on November 1, 1925, secured by a mortgage on the premises. Defendant went into possession, and on November 1st paid the interest due at that date, but nothing on the principal. Defendant claims that he made numerous requests of plaintiff to have the land .surveyed to ascertain the acreage, but nothing was ever done by plaintiff to ascertain the shortage; that defendant finally made some sort of measurement himself and found it measured only 69 or 70 acres. He therefore got a draft for $600, which was the amount he claimed would be due November 1st on the basis of the tract containing 70 acres, and deposited this draft in a bank which was authorized to receive and transmit to plaintiff, residing in Illinois, the amount of the payment due November 1st. [47] Although an officer of the bank testifies to having received this draft and that “it was held in trust by the bank,” the evidence in the record does not show when it was received nor what became of it. The court finds that it “remained in the hands of the bank for more than one year and was finally refused by plaintiff, but without plaintiff advising defendant of what the record acreage of the land was,” and that the draft was returned to defendant about January 6, 1922. On that date plaintiff served on defendant a notice demanding payment to him of $385, balance of interest due on the contract, also $1,400 which he claimed was due November 1st, and unpaid taxes in the sum of $202.73, making a total of $1,987.73, and further notified defendant that unless this sum was paid to plaintiff’s order at Henry State Bank on or before March 15, 1922, plaintiff would “cancel and determine this said contract.’’ This sum not being paid, plaintiff on April 3, 1922, commenced this action to determine all adverse claims of defendant to the property, and demanding that it be adjudged that defendant has no estate or interest whatever in and to the premises and has forfeited all his right, title, and interest in and to said premises. Defendant answered, setting up the contract and alleging by way of counterclaim in substance that it had been mutually rescinded and abandoned; that he had surrendered possession to plaintiff and demanded return of what he had paid on the contract. The trial court -found in substance that plaintiff, by the notice of forfeiture and cancellation served upon defendant, plaintiff not having tendered any deed or abstract pursuant to> the contract or ascertained the record acreage of the land, and having demanded more than was due him under the contract, had rescinded the contract and given defendant the right to treat it as abandoned, which defendant did, and he was therefore entitled to recover the money paid by him, less the reasonable value of the use and occupation of the premises, and from a judgment entered in accordance with the decision and from an order denying a new trial plaintiff appeals. By the terms of the contract defendant acquired a vested equitable estate in the land, of which he could not be deprived except by decree of court or mutual consent of the parties, or in pursuance of strict compliance with the terms of the contract on the part of the vendor. Phillis v. Gross, 32 S. D. 438, 143 N. W. 373; Reid v. Gorman, 37 S. D. 314, 158 N. W. 780. [48] The contract price was $80 an acre, and the total of $6,400 was arrived at on an assumption of 80 acres being in the tract, but the contract itself expressly stated that there was only 'between 70 and 80 acres and that the payment of $1,400 provided for on November 1, 1920, was to be reduced by the amount of the shortage in area from 80 acres at the rate of $80 an acre. The vendor took no steps whatever, either by actual survey, looking up the records referred to in the contract, or by furnishing an abstract of such records, to ascertain what that shortage was, but on this appeal he concedes that it was 4.58 acres. Nevertheless in his notice of forfeiture he demanded payment on the basis of the full 80 acres, and according to his own concession he was demanding at least $366 more than was due him, and in his notice he declared that unless that excessive amount was paid he would cancel the contract. He further claimed in his notice that defendant must pay him the amount of the unpaid taxes. There is no evidence that he had paid the taxes, and therefore he was not entitled to' demand the amount of the unpaid taxes from defendant; although defendant had agreed to pay the taxes, he was not liable for the amount thereof to plaintiff. Defendant claimed that his measurement showed only between 69 and 70 acres of land in the tract. This measurement was not made by a survejmr nor by the use of surveying instruments and probably was defective, but plaintiff never took any steps at all to ascertain the amount that was actually coming to him under the contract, or to advise defendant of the acreage he claimed was in the tract, nor did he at any time tender a deed or abstract of title as he was required to do by the terms of the contract. The contract provided that in case of failure by defendant to make the payments provided for, then the whole of the payments, both principal and interest, should, at the election of plaintiff, become immediately due and payable, and that the contract at the option of plaintiff might be forfeited and determined by giving to defendant notice in writing of his intentions to cancel the contract, and that if so canceled defendant should forfeit all payments made by him. Plaintiff’s right to the payment due November 1st, and defendant’s right to receive a warranty deed to the land with ■ an abstract showing a merchantable title, were mutually dependent covenants, and plaintiff could not put defendant in default or [49] lawfully forfeit defendant’s right under the contract until he had tendered such a deed and abstract. Ink v. Rohrig, 23 S. D. 548, 122 N. W. 594; Hauert v. Kaufman, 45, S. D. 132, 186 N. W. 555; Id., 50 S. D. 203, 208 N. W. 981; Ontjes v. Thomas, 45 S. D. 425, 187 N. W. 726; Saunders v. Erickson, 45 S. D. 500, 189 N. W. 116; Hoffman v. Kleinjan (S. D.) 224 N. W. 187. In Hauert v. Kaufman, supra, the situation was quite similar to that in the present case. Plaintiff brought action to' quiet title against defendant, a vendee under a land contract like that in the case at bar. Defendant in his answer set up a counterclaim, setting forth facts showing that plaintiff wrongfully attempted to cancel and forfeit the contract and demanding judgment for the money that defendant had paid under the contract. We held that plaintiff having wrongfully sought to terminate the contract, “appellant had the right to elect to treat the same as mutually abandoned, and to recover the $1,000.00” that he had paid. Plaintiff contends there was more due him on November 1, 1920, than $600, and that as defendant had only offered to pay that much, it would have been an idle act for him to tender a deed and abstract, but it clearly would equally have been an idle act for defendant to have tendered any sum less than $1,400, which plaintiff now concedes was $366 more than was due him, to say nothing of plaintiff’s demand for taxes in the sum of $202.73 to which he was not entitled. If thus appears that the parties bad arrived at a stage where any further move by either of them under the contract would have been an idle act. Plaintiff unjustifiably declared the contract canceled and determined. Defendant promptly surrendered possession and demanded the return of what he had paid. Plaintiff now comes into a court of equity asking to have the cloud on his title created by the contract removed, but he confesses that his termination of the contract was founded upon defendant’s failure to comply with his own unjustifiable demand for more than $500 in excess of what was due him-. He who seeks equity must do equity. Rev. Code 1919, § 48. Plaintiff cannot insist upon a forfeiture provided by a contract which he himself has unjustifiably terminated. In this action he is only entitled to have the cloud of the contract removed from the land upon a proper adjustment of the equities between himself and defendant, that is, upon the return of the money he received on the contract, 4 — Vol. 57, s. D. [50] less the' value of the use and occupation of the land during the time it was occupied1 'by defendant, and this the judgment of the trial court gave to him. -The judgment and order appealed from- are affirmed. POLLEY and SHERWOOD, JJ., concur. CAMPBELL, J. 1 concur in the affirmance of the order and judgment appealed from.