Hartshorn v. Smith

Citations

• 19 S.D. 653
• 104 N.W. 467
• 1905 S.D. LEXIS 93

Syllabus

<p>The petition to the county court to have the executor of one hound by contract to convey real estate, biit dying before making the conveyance, decreed to make the conveyance, is properly dismissed,■without prejudice to petitioner’s right to proceed in the circuit court, under Rev. Prob. Code, sec. 259, providing therefor where on the hearing the right of petition to have specific performance is found to be doubtful; it appearing that the contract price was only a third of the value of the property at the time of the hearing that only a third of the contract price was paid when the contract' was made, and that, though the contract, which was not recorded till nine years after its execution, provided that on payment of the balance -of the purchase money, evidenced by the purchaser’s note payable five years after date, and payment of the taxes, or on execution and tender of a mortgage securing the balance of the purchase money, the vendor would give a deed, no payment of the note or taxes, or tender of the same or of a mortgage, was made during the life of the vendor, who died four years after the note was due, and no reasons excusing such failure to make payment or tender being disclosed.</p> <p>CORSON, P. J., dissenting.</p>