Pier v. Lee

Citations

• 14 S.D. 600
• 86 N.W. 642
• 1901 S.D. LEXIS 67

Syllabus

<p>1. Comp. Laws, §§ 4622, 4623, provide that preventative relief is given by prohibiting a party from doing that which ought not to be done, and that neither specific nor preventative relief can be granted to enforce a penal law, except in a case of nuisance, nor to enforce a penalty or forfeiture in any case. Held, that such sections had no application to an action to quiet title and recover land sold to the defendant, where plaintiff did not ask for the enforcement of a penalty or forfeiture, and the only issue as to any forfeiture was raised by the answer, by which defendant sought relief from a forfeiture in the contract for failure to make payments on the day provided.</p> <p>2. Plaintiff contracted to sell certain land to defendant; payment to be made in installments on the 1st day of September in each year after September, 1890, “together with interest, payable annually, on all sums, whether principal or interest, after due”; time to be of the essence of the agreement. Defendant entered and made valuable improvements on the land, and on September 2, 1890, paid plaintiff $85 interest, and alleged an extension of time for the payment of the principal due September 1, 1891. On December 8, 1891, plaintiff demanded payment of the principal due on September 1st, and, on defendant’s failure to pay the same, declared the contract forfeited on the 11th of the same month, and brought suit to recover possession of the land, which was dismissed. On September 1, 1892, defendant offered to pay plaintiff the entire sum due, with interest, which plaintiff refused, whereupon defendant caused the amount to be deposited in a bank to plaintiff’s credit. Held, that the provision of the contract that time should be of its essence was binding as well on the plaintiff as on the defendant, and hence, plaintiff having omitted to declare a forfeiture for three months after he was entitled to do so) on September 1, 1891, he thereby waived the same, and defendant was therefore entitled