Danielson v. Albers

160 N.W. 734, 38 S.D. 185, 1916 S.D. LEXIS 142

• Court: South Dakota Supreme Court
• Decided: December 30, 1916
• Docket: File No. 4023
• Status: Published

Opinion

BOLLEY, P. J.

This action is brought for the .purpose of compelling the defendant® Albers and McCullough- to recionvey to -plaintiff a certain quarter section of 'land in Lyman -county that 'had been conveyed to said defendants by plaintiff, and for damages alleged to 'have been occasioned by the execution of a certain mortgage -upon said land by the defendants Albers and McCullough to the defendant Richardson. Defendants Albers and McCullough demurred to said -complaint on the -ground' that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and, from the Order sustaining s-aid demurrer, ‘plaintiff appeals.

While tíre complaint is by no means a model pleading and contains -much surplus matter, -it is made to appear therefrom ■that appellant w-as the owner of a quarter section of land in Lyman county, and that he employed the respondents to act as ■his agents to assist -himi in making- an exchange loif said land for a quarter -section of land in Clay county, Minn.; that respondents accepted said employment and proceeded therewith; that, acting upon the -advice of respondents -and with the intent to. bring- about the said exchange, appellant entered into a contract -in writing with one A. F. Higbie for the exchange of said1 tracts of land. Appellant then alleges that respondents, as. his agents, induced him to execute to ‘them a warranty deed, for which he received no consideration, conveying- the title to said land to the respondents-, and that they (instead of completing the s-aid transaction ■by conveying the said title to said Higbie) executed and permitted to- be placed of record the mortgage above referred to. The giving of this mortgage was -contrary -to the purpose of tlreir employment. The contract with Higbie contemplated- the conveyance of the title to -appellant’s land- to the s-aid Higbie, and not that the same should become vested in the respondents. As between appellant and respondents, appellant had -a right to terminate the employment -of respondents and to demand a re-conveyance of the title to his land in the -same condition -it was when it was Conveyed to them.

Under the facts shown by the complaint and which are admitted.' by the demurrer, the appellant w’as -clearly entitled to the relief demanded.

The demurrer should have been, overruled, and the order appealed -frotó is reversed.