Godfrey v. Rosenthal

Citations

• 17 S.D. 452
• 97 N.W. 365
• 1903 S.D. LEXIS 76

Syllabus

<p>1. Plaintiff and defendant contracted for an exchange of property, the ' former to convey mining property and the latter to convey a lot. The deeds were to he delivered on plaintiff receiving the receiver’s certificate for his property. After the issuance of the certificate, defendant under the agreement, instituted a suit in plaintiff’s name, and at his expense, for the removal of a cloud on the title of the mining property, obtaining a decree for its removal. Thereafter defendant delivered his deed conveying the lot.’ Held that, as the delay in the delivery of the deed from the date of the receivers certificate to the date of the decree removing the cloud was assented to by plaintiff, he. could claim no damages therefor, nor for any further delay in the delivery of the deed, without showing that he sustained damages.</p> <p>2. Under Rev. Civ. Code, § 2347, providing that an agreement for the sale of property cannot be specifically enfot ced in favor of a seller who cannot give a title free from reasonable doubt, a purchaser of real estate does not subject himself to an action for damages for refusing to accept the same while there is an apparent cloud on the title, so that it is not free from reasonable doubt..</p> <p>3. In an action for damages for the breach of a contract for the exchange of real estate, occasioned by defendant’s failure to convey, the existence of an outstanding mortgage on plaintiff’s- property was a defense; the question as to whether the mortgage was barred by limitations being an open question, audit also depending on other considerations, siich as part payment, payment of interest, etc.</p> <p>4. In’ an action for damages for the breach of a contract for the exchange of real estate, occasioned by the failure of defendant to convey, the existence of an ontstanding mortgage on plaintiff’s property is a defense, where it was shown that plaintiff assured defendant that the title was free from incumbrances, though the contract did not call f