Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-03-20

therefor. Respondent informed appel
lants Of this fact and that 1t woaAa
procure a deed whenever necessary
under the terms Of the contract. NE
spendents repeatedly urged appel
lants to perform as required by the
terms OF the preliminary contract bat
appellants Totally failed TO eopaPlN
| with any part OF the terms thereof,
They never paid anything on the cor,
| tract: they never transferred their
property, and never executed the per-
manent contracts called Ser> but eh>
tered into possession OF the land and
retained possession until this action
was brought to quiet title, 1t Is held;
l. That as a genera, rule, when a
contract is entered into in good faith,
the vendor having an estate or inter-
est in the land contracted to DO 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
default, and that the court will not
grant specific performance as de-
manded in their answer. rs against
respondent; and that the excuse OF.
fered by appellants for their refusal
to perform in accordance with the
terms of the preliminary contract fur.
nished no justification for their de
fault.
2. This court does not determine
whether a certain circular advertising
lands for sale by respondents, seen
by appellants before entering into the
contract named, which cir lar stated
that the title was perfect and held I'm
der only one conveyance from the gov.
eminent, constituted fraud on the ap-
pellants, because, ever though they
Ought 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 merchantable title
to defendants had they put themselves
inc position to demand or receive it.
8. The appellant having been given
every opportunity to comply with the
terms of their contract, and having
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 seek
ing to be relieved from the terms of
the contract, and having demanded ad.
ditional acts on the part of respond
ent never contemplated, Or provided
for in the contract, are not in posi-.
tion to maintain specific performance
as against respondent.
4. The trial court gave judgment
against appellants for $1,000 for the
use and occupation of respondents
land while in possession. This judy
ment is modified and reduced to the
sum of $2,1S5, which, in view of the
unsatisfactory condition of the evi.
dence on the subject, is the most this
court lnds the respondent entitled to
recover. -.
(Syllabus by the Court.)
d. Appeal from a judgment of the dis
trict court of Filings county, Much.
OILS, special Judge.
Judgment affirmed as modified.
Opinion of the court by Spalding,
C. J.
Burke, j., did not participate; J.
A, Coffey, judge of rne Fifth Judicial
District sitting in his place.
Heron and Baird, Dcknson, and J.
A. Miller, Beach, for appellants.
Purcell and Divet, Wahpeton, T. F.
Murtha, Dickinson, and Engerud, Holt
and Frame. Fargo, for respondent.
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