The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-03-20

prepared the formal contracts and
submitted them within the time nam
ed, and on various other occasions, to
the appellants for execution. They,
on each occasion, refused to execute,
giving as their only reason the TACT
that the records did not show title to
the land which was to be conveyed
by respondent, to be i'm respondent.
In fact respondent held such land only
an on ~executory contract which pro-
vided that 1t might secure deed to
any quarter section of a large amount
covered by such contract on payment
of SO per acre therefor. Respondent
informed appellants Of this fact I'M
that it would procure a deed whenever
necessary under the terms OF their
contract. Respondent repeatedly urg-
ed appellants to perform as required
by the terms Of the preliminary con-
tract, but appellants totally failed to
comply with any part Of the terms
thereof. They W paid anything on
the contract; they never transferred
their property, and executed the
permanent contracts called for, but
entered into possession OF the land
and retained possession until this &C
ton was brought to quiet title. 1t
is held:
/. That as a general rule, when a
contract is entered into in good faith,
the vendor having an estate or inter-
est in the land contracted to be con-
veyed in the future, it is not necessary
that he be actually in a situation to
perform at the time the contract IS
made: that the most that is required
Of him is that he be able to perform
when the vendee has a right TO call
upon him for performance.
2. That appellants were totally IN
5afaYSJF onJ that the court will not
grant specific performance, as de-
manded in their answer, as against
respondent; and that the excuse Of
fered by appellants for their refusal to
perform in accordance with the terms
of the preliminary contract furnlshed
no justification for their default.
O.. This court does not determine
whether a certain circular advertising
lands for sale by respondents, seen by
appellants before entering into n
contract named, which circular stated
that the title was perfect and held I'M
der only one conveyance from the
government, constituted fraud on the
appellants, because, ever though they
bought on the strength OF such repre-
s%entation, fraud was not pleaded and
the record shows that plaintiff was in
position at the time designated by the
contract to convey m~erchantable tue
to defendants had they put themselves
in position to demand OF receive 1t.
g.. The appellants having been CIV
en- every opportunity to comply with
the terms of their contract, and hav-
ing never made any attempt to do SO,
but rather having attempted to cast
| all the burdens on the respondent and
make it take all the risks involved on
both sides of the transaction, and
having waited until after a material
increase in the value Of the property
to be conveyed to them before seeking
to be relieved from the terms OF the
contract, and having demanded addi-
tional acts on the part Of respondent
never contemplated, or provided for in
the contract, are not in position TO
maintain specific performance as
| against respondent.
4. The trial court gave Judgment
against appellants for $4,000 for the
use and occupation Of respondents
land while in possession. This judg-
ment is modified and reduced to the
| sum of $2,1s5, which, in view of the
unsatisfactory condition of the evil
| dence on the subject, is the most this
| court finds the respondent entitled to
recover.
(Syllabus by the court.)
Appeal from a judgment of the dis