Fletcher v. Arnett

Citations

• 4 S.D. 615
• 57 N.W. 915
• 1894 S.D. LEXIS 21

Syllabus

<p>1. Where father and son enter into an agreement with G. by which they agree to convoy to G. a tract of land in Nebraska owned by the father, and a tract of land in South Dakota owned by the son, and by the same agreement G. agrees to convey to the father and son a tract of land in Kansas on which there is a $6,000 mortgage, and in which agreement there is a recital: “Whereas, there is now a mortgage upon said above described land * * * for six thousand dollars ($6,000,) which said second party [G.] is to cause to be paid off and discharged,” — held, that this constitutes a distinct admission that G. had agreed to pay off said mortgage on the Kansas land as a part of his contract, and that a failure to so pay off the mortgaee by G. and a denial of his liability to pay off said mortgage, entitled the father and sonto i’escind the contract.</p> <p>2. Said agreement contained the following clause, in substance: “Butin ease said G. shall fail to deliver a release of the mortgage, and a receipt for $1,040 cash, to the parties with whom deed was to be deposited, on or before the first day of July. 1891, then the said G’s right to said [Nebraska] land shall be forfeited, and the same shall be returned to the father.” Held, that under this clause G. could not relieve himself from his liability, to pay off and discharge the $6,000 mortgage, as a part of his contract, by a failure to deliver a release and to pay the $1,040, and permitting the deed to the Nebraska land to be returned to the father, and that a failure by G. to pav off the mortgage and $1,040 cash entitled the father and son io rescind the contract.</p> <p>3. By the terms of said agreement the said G. agreed to convey to the said father and son, or to such ise.rsons as they might direct, “by good and sufficient warranty deed,” the Kansas land, without any clause excepting from such warranty the $6,000 mortgage. Held, that a deed containing a warranty of title, and against incumbrances “excepting a mortgage for