Golden Valley Land & Cattle Co. v. Johnstone

Spalding, Ch. J. (after stating the facts as above). The defendants’ contention and attitude during all the time since the execution of the contract set out above have been based upon the supposition that the contract called for title in plaintiff at the time it was entered into, and that, without such title, defendants could not be compelled to perform in accordance with the requirements of the contract. Herein they are mistaken. The contract did not require title to be in plaintiff when executed. The plaintiff did not agree to show title in itself at such time. It agreed to convey title at a future date. While it is altogether probable that, had the plaintiff been without any interest in section 13, the contract to convey might not be sanctioned, yet it is well-established law that, as a general rule, when a contract is entered into in good faith, the vendor having an estate or interest in the land, it is not necessary that he be actually in a situation to perform at the time the contract is made; that the most that is required of him is that he be able to perform when the vendee has a right to call upon him for performance. This is the established law of this state. Martinson v. Regan, 18 N. D. 467, 123 N. W. 285. See also: Townshend v. Goodfellow, 40 Minn. 312, 3 L.R.A. 739, 12 Am. St. Rep. 736, 41 N. W. 1056 ; Easton v. Montgomery, 90 Cal. 307, 25 Am. St. Rep. 123, 27 Pac. 280 ; Gray v. Smith, 76 Fed. 525. Courts do not make contracts for parties. Had defendants desired a perfect title before transferring their property or making payments, they should have contracted with reference to the title, at the date of [161] contract, rather than for a conveyance to be based alone on the title of plaintiff at a future date. For this reason the excuse offered by defendants for their refusal to perform in accordance with the terms of the contract, or at all, was invalid, and furnished no justification for their default in the terms of the contract which they had entered into. Authorities cited hy defendants are not in point, on this contract, in this state. As far as the equities in this ease go, the record discloses, and particularly the correspondence, which we have not set out, that for many months the plaintiff was seeking to carry out its agreement, and was only requiring of the defendants that they perform on their part the conditions which were required by the contract they had made. The contracts which were presented to defendants were executed by the plaintiff, and all that was necessary in the first instance was for the defendant to have executed them, and to have deeded the Sioux Falls property, as the defendant John Johnstone agreed to do. We need not consider whether the contract was the joint contract of John and Carrie Johnstone or only the contract of John Johnstone, in the view of the law which we take. It seems to have developed that the title to the 'Sioux Falls property was in Carrie Johnstone, and that, after her becoming insane, she could not have executed, and there was no one who, on her behalf, could have executed, a warranty deed thereto. This, however, we deem, under the facts, immaterial. They were given every opportunity that any reasonable person could demand, to perform. They refused until the value of the land had greatly enhanced, and then alleged that they were ready to perform, and claimed the right to pay all cash, instead of conveying the Sioux Falls property as a part of the consideration. The plaintiff proceeded in accordance with the provisions of our statute for the cancelation of contracts. No equities .arose over any payments made, because none had heen made by the defendants, and it appears to us to be a clear case in favor of the plaintiff. We may add that there was some claim made in argument, of fraud ■on the part of plaintiff by reason of the fact that defendants had seen, or been given, a circular advertising lands for sale by plaintiff, which •circular stated that the title was perfect and held under only one conveyance from the government. Whether, had defendants bought on [162] the strength of this representation, it would have constituted fraud on the part of plaintiff, need not be determined, as fraud was not pleaded; and the record shows that plaintiff was in position, at the time designated, to convey a merchantable title to defendants had they put themselves in position to demand or receive it. To sum the case all up, it amounts to this, that the plaintiff held an equitable title to section 13, and could procure legal title thereto whenever needed; that the defendants were given every opportunity to comply with the terms of their contract, but never made any attempt to do so. They paid nothing down; they failed to transfer their Sioux Falls property, as agreed, or at all; they did not make the payments called for by the contract, and refused to execute the new contracts. They attempted to cast all the burdens on the plaintiff, making it take all the risks involved, on both sides of the transaction. Without right to do so they entered into the possession of section 13, cropped it several years, there was a material increase in its value, and after this has occurred they seek to be relieved from compliance with the terms of their compact, and to hold plaintiff, not only to the conditions thereof, but to additional conditions or requirements which were never contemplated or provided for in the contract. To permit the defendants to maintain specific performance under such facts and circumstances would certainly afford them an advantage which no court of equity can permit, in the face of the objection of the other party. As near as we can figure from the record, the defendants had the use of 1,450 cropped acres, and they broke, on the land, 480 acres. The trial court granted the plaintiff judgment for $3,000 for the use and occupation of this land. The evidence regarding its value is very unsatisfactory. Were it perfectly clear we should not assume to modify this judgment, but in the condition in which we find it we think this allowance is excessive, and that, taking the figures given as near as we can reach them, this judgment should be modified to the sum of $2,185, that being $2.50 per acre for the use of the cultivated land, with a credit of $3 per acre for the breaking. The District Court will modify the money judgment in accordance with these views, and -when so modified it stands affirmed. Each party will pay its own costs on appeal. [163] Burke, J., did not participate; J. A. Coefey, Judge of the Fifth Judicial District, sitting in his place by request.