Colson v. Johnson

South Dakota Supreme Court

Colson v. Johnson

202 N.W. 389, 48 S.D. 124, 1925 S.D. LEXIS 16

CourtSouth Dakota Supreme Court

DecidedFebruary 24, 1925

DocketFile No. 5414

StatusPublished

This text of 202 N.W. 389 (Colson v. Johnson) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Colson v. Johnson, 202 N.W. 389, 48 S.D. 124, 1925 S.D. LEXIS 16 (S.D. 1925).

Pincite

Opinion

DIEEON, J.

This appeal grows out of a contract for the sale of real estate. Partial peyments were made by the vendee, who then defaulted. The vendor then brought this action to foreclose the vendee’s right under the contract, but in his complaint asked for a sale of the property involved under execution, and for deficiency judgment in case the property did not sell for enough to cover the deferred payments. Bindings of fact, conclusions of law, and judgment were in favor of plaintiff, granting him a deficiency judgment as prayed for in the complaint.

'In their brief counsel for the plaintiff say that this is an action to foreclose the vendee’s interest in the land described in the contract. 'We think this statement is correct, but the plaintiff is not entitled to a deficiency judgment. He is entitled to retain the sums of money that have been paid on the purchase price, and is entitled to have the vendee’s rights foreclosed.

This cause is remanded to the trial court, with directions to modify the judgment, and without further trial, instead of providing for sale on execution, to fix a period within which appellants shall comply with, and, if they do not, then that their rights under the contract shall be forever barred.

AND EPSON, J. not sitting.

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DIEEON, J.

This appeal grows out of a contract for the sale of real estate. Partial peyments were made by the vendee, who then defaulted. The vendor then brought this action to foreclose the vendee’s right under the contract, but in his complaint asked for a sale of the property involved under execution, and for deficiency judgment in case the property did not sell for enough to cover the deferred payments. Bindings of fact, conclusions of law, and judgment were in favor of plaintiff, granting him a deficiency judgment as prayed for in the complaint.

'In their brief counsel for the plaintiff say that this is an action to foreclose the vendee’s interest in the land described in the contract. 'We think this statement is correct, but the plaintiff is not entitled to a deficiency judgment. He is entitled to retain the sums of money that have been paid on the purchase price, and is entitled to have the vendee’s rights foreclosed.

This cause is remanded to the trial court, with directions to modify the judgment, and without further trial, instead of providing for sale on execution, to fix a period within which appellants shall comply with, and, if they do not, then that their rights under the contract shall be forever barred.

AND EPSON, J. not sitting.

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Bluebook (online)

202 N.W. 389, 48 S.D. 124, 1925 S.D. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colson-v-johnson-sd-1925.