Peck v. Zborowski

82 N.W. 387, 13 S.D. 182, 1900 S.D. LEXIS 99

• Court: South Dakota Supreme Court
• Decided: April 3, 1900
• Status: Published

Opinion

Fuller, P. J.

In Edmison v. Zborowski, 9 S. D. 40, 68 N. W. 288, may be found facts essential to a complete understanding of this case, as formerly presented on appeal from a decree in equity requiring appellant to specifically perform a contract to purchase real property upon the following, among other, conditions to be performed by respondent: “That the plaintiff furnish for defendant an abstract of title to said property, showing said property to be free and clear of all mortgages, incumbrances, liens and judgments, and disclosing thereby a full and perfect title in plaintiff to date of transfer; said abstract of title to be settled and approved by the court in case the parties shall differ respecting the .-ame. That the defendant is entitled to have at this time, and at the date of transfer to receive from the plaintiff, a marketable title to said, property, free from reasonable doubt, as against judgments, incumbrances, or liens of any character now existing, and that may have arisen or occurred since the date of the trial of this action. * * And if the plaintiff fail to furnish such marketable title; to be so accepted or approved, then he' shall be barred of his right to a specific performance of the said contract, and the same be delivered up to be canceled." Without passing upon, or in any manner noticing, any of the numerous objections to the abstract of title urged by counsel for appellant, and which respondent had not, in our opinion, been given a sufficient opportunity to remove, we held, in affirming the action of the lower court, that: ‘‘A decree in equity which fully protects appellant, and requires specific performance upon the part of respondent before appellant is required to pay any part of the consideration, ought not to be disturbed.' * * * And unless respondent holds himself in readiness and is- able to furnish a title satisfactory to appellant, or one that the court will approve as perfectly in accord with the contract between the parties, and the decision of the court before whom the case was tried, she is not required to perform', and by the terms of the decree the contract must be delivered up for cancellation.” By the decree thus affirmed on appeal, respondent, after fully complying with its terms, was authorized, upon appellant’s failure or refusal to comply therewith, to sell the premises at public auction, and in the same manner and upon like notice as in case of the sale of real property upon execution, for the purpose of producing a fund with which to pay the agreed purchase price, together with costs; and, in case said property should sell for less than the contract price, a deficiency judgment was authorized. Soon after the affirmance of the foregoing decree it appears from the record now before us that Edmison, without attempting to remove any of the defects complained of, or clouds upon the title which had arisen subsequent to the entry of such decree, in the nature of judgments, interest, and taxes, executed a deed, which he caused to be recorded, without submitting the same to either the court or appellant for approval, and no notice whatever was given her. Thereafter he caused the property to be sold on execution, and the same was bid off by his attorney for $100, subject to a certain mortgage lien of more than $6,000, leaving a deficiency of about $6,000, for which amount the judgment involved in this appeal was entered. Prior to the service of a notice of an application to the court for an order confirming the sale and entry of the deficiency judgment, no notice whatever had been given to appellant and no abstract or other evidence of title had been submitted to either appellant, her attorney, or the court. Having failed to comply with these material provisions of the decree, by furnishing the abstract and title required, appellant was under no obligations to 'perform the contract, upon her part, and the same should' have been delivered up for cancellation. As the case stands, it would serve no material purpose to specify the particulars wherein the title is substantially defective, and, without further discussion, we conclude that the court erred in denying appellant’s motion to set aside the deficiency judgment, together with the order confirming the sale. The judgment appealed from is therefore reversed, and the case remanded for further proceedings consistent with the view herein expressed.

Haney, J., not sitting.