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and telephone share are a part consideration of the above farm.” Being aware that his title might prove defective, Hounchin began the suit to quiet title a few days later; but, as this had not been heard, on March 4th following, the parties entered into a supplementary contract, in which they agreed “that the making and executing of one certain mortgage of $1,800” on the land in favor of plaintiff by the Salyards, to run from March 1, 1908, to March 1, 1915, at 6 per cent, interest, payable annually, of which principal $200 shall be paid on March 1st each year, with the option of Daying any additional amounts on said date, shall be postponed until party of the first part shall, at his own expense, procure a complete and perfect abstract of title to the above said land; the title thereto now being in the courts of Taylor county, Iowa, for quieting. At that time, and as a part of the same transaction, Salyards paid plaintiff the $900 then due, and plaintiff executed to Salyards and wife a conveyance of the land by warranty deed; the grantees assumin: the payment of an existing mortgage thereon of $2,000. The grantees immediately went into possession, and on November 12th of the same year entered into a contract of sale with Ethel Hounchin, by the terms of which they undertook to sell the land to her for $65 per acre, paying $200, and agreeing to pay $1,200 March 1, 1909, assume the payment of the existing mortgage, and take care of the $1,800 deferred payment as stipulated: “Possession of said land is to be given on March 1, 1909, at which time the said J. H. Salyards and Eudura Salyards agree to execute and deliver to the said Ethel Hounchin their good and sufficient quitclaim deed conveying said premises. The first parties further agree the title to said premises shall be in as good condition on March 1, A. D. 1909, as it now is. It is further understood by all the parties hereto that the said J. H. Salyards purchased said land from one J. W. Hounchin, and that he entered into a contract in relation thereto with the said J. W. Hounchin, which contract was thereafter amended as heretofore stated; that as a part of said contract the said J. H. Salyards agreed to execute and deliver to the said J. W. Hounchin a mortgage on said premises for $1,800, the same to be second to the mortgage for $2,000 now on said premises; but it was agreed that the execution of said mortgage was to be postponed until the first party therein, viz., the said J. W. Hounchin, should at his own expense procure a complete and perfect title to said land; that he has not done so up to the present time; that if the said J. W. Hounchin should comply with his said contract, he should be entitled to have the owner of the land execute and deliver to him a mortgage for $1,800, second to the one already thereon for $2,000, and in that case the sec

ond party herein, for herself and assigns, agrees that said mortgage shall be executed as provided in said contract and amendment; and that the said J. H. Salyards shall be held harmless, and relieved of all further responsibility, because of any provisions therein contained. And the second party hereby assumes said contract and amendment thereto, together with all the obligations therein cast upon the said J. H. Salyards. It is also understood that the Farmers' Telephone, and the shares of stock accompany the same, shall pass with the premises hereintofore described.” On March 1, 1909, the $1,200 was paid, and Salyards and wife signed and acknowledged two quitclaim deeds, one to Ethel Hounchin as grantee, and the other to Clarence Edwin Meredith, and delivered them to E. W. Meredith. It appears that the latter had negotiated the purchase, and paid the price, and that he caused the deeds to be so made with a view of future delivery of the last mentioned to his son, if his deportment pleased, but, if not, then of delivering the one running to Ethel Hounchin (his daughter), to hold in the land in trust. The deeds remain in his possession. Such is the record on which the plaintiff demands in the one action that title be quieted in him against R. M. and E. W. Meredith and Ethel Hounchin, and in the other that he have judgment against J. H. and Eudura Salyards for the deferred payment of $1,800, and that this be established as lien on the land as against any interest Ethel Hounchin and Clarence Edwin Meredith may have acquired. We shall dispose of the last-mentioned Case first.

Action for Purchase Price.

[1] I. In their answers in the action for the recovery of the deferred payment of $1,S00, the defendants plead the defective condition of the will by reciting the facts as heretofore stated, but make no tender of a conveyance of the land, nor demand the cancellation of the obligation to pay. In effect, the answer is a plea in abatement, relating that, as a condition precedent to recovery, title must be perfected in plaintiff. Had the Salyards retained the land, there might have been some ground for insisting upon the terms of the contract by which the execution of the mortgage of $1,800 “shall be postponed until party of the first part shall, at his own expense, procure a complete and perfect abstract of title.” But, as seen, they had sold and conveyed the land by quitclaim deeds, with the stipulation that they be kept from harm, and thereby rendered themselves powerless to perform their part of the contract; that is, to execute the mortgage. That their grantee promised to do so affords no excuse. This was not binding on the plaintiff. He in no manner consented or acquiesced in such an arrangement, and, this being so, was not required to accept the ob

ligation of Ethel Hounchin or of any one else in lieu of that of J. W. and Eudura Salyards. Rappleye v. Racine Seeder Co., 79 Iowa, 227, 44 N. W. 363, 7 L. R. A. 139; Worden v. Ry., 82 Iowa, 735, 48 N. W. 71. “Contracts whereby one party agrees to extend credit to the other cannot be arranged by such other so as to require it to be extended to the assignee.” 3 Page on Contracts, 1941. [2] But it is insisted that, even though the Salyards might not execute the mortgage, they were not disabled from paying the money. They were to pay $200 “on each interest pay date, with the option of paying any amount in excess of $200.” As the interest was to be paid annually, this option might not be exercised until a year subsequent to the execution of the mortgage. The additional Contract does not obviate this conclusion, though fixing the date of the mortgage and time for the payment of the interest and $200 yearly, and allowing more than this to be paid if tendered on the day named. Unless the title were perfected on that particular day of the year—that is, March 1st— the obligation was to execute a mortgage with certain conditions, and as to every other day there was a clear breach of the condition of the contract on the part of the Salyards. Having disabled themselves for performance, they are not in a situation to insist that the action is premature. If a party disables himself from performing his contract, he may be sued as for a breach thereof before the day of performance arrives. Crabtree v. Messersmith, 19 Iowa, 179; Jewett v. Brooks, 134 Mass. 505; Taylor v. Bradley, 39 N. Y. 129, 100 Am. Dec. 415; Short v. Stone, 8 Q. B. 358; Lee v. Pennington, 7 Ill. App. 247. [3] The suit then cannot be said to have been premature. But, as seen, the plaintiff bad not perfected his title, for the reason that the widow of Joseph B. Meredith was still living, and, of course, her heirs, entitled to take an undivided half interest in the premises, might not be ascertained until her death. Conceding this, however, it does not follow that the Salyards can retain the land and refuse payment of the balance of the purchase price. The law will not permit the purchaser to obtain possession under contract or deed, and, without returning the property, defend against an action for the purchase money upon the ground of the title being defective. If this were permissible, he might retain it indefinitely, and, although enjoying the possession and use undisturbed, deprive the vendor of the consideration. As said in Harvey v. Morris, 63 Mo. 475: “Where a purchaser of land, by virtue of the contract of purchase, is put in possession of the land, he cannot resist the payment of the purchase price without offering to restore the possession thus acquired by him to the vendor. He cannot be permitted to occupy, possess, and enjoy the profits of the land, and

price agreed to be paid.” The principle is well stated in McIndoe v. Morman, 26 Wis. 588, 7 Am. Rep. 96: “The remedy of the purchaser, where the title of the vendor fails, or he is unable to make conveyance as stipulated by the contratt, is to rescind the contract, or offer to, and to restore the possession, in which case he may recover the purchase money advanced and the interest, together with the value of his improvements, deducting therefrom such sum as the use of the premises may have reasonably been worth; and, if necessary for his protection, the court will also provide by the judgment that the possession be not surrendered until the amount so recovered shall have been paid or otherwise secured to his satisfaction. If, on the other hand, the purchaser chooses not to rescind, but to retain possession under the contract, he can do so only upon condition that he pays the purchase money and interest according to the contract. In the latter case, or rather, when the purchaser does not elect to rescind, it is considered that he is willing to receive such title as the vendor is able to give, and content with the personal responsibility of the vendor upon his covenants in case the title actually fails and he is afterwards dispossessed.” See, also, as announcing like conclusions, McLeod v. Barnum, 131 Cal. 605, 63 Pac. 924; Sanderlin v. Willis, 94 Ga. 171, 21 S. E. 291; Wyatt v. Garlington, 56 Ala. 576; Dahl v. Stakke, 12 N. D. 325, 96 N. W. 353; Helvenstein v. Higgason, 35 Ala. 259; Dunn v. Mills, 70 Kan. 656, 79 Pac. 146, 502.

As the Salyards disabled themselves to perform and did not tender possession, the court rightly entered judgment against them for the amount of the deferred payment, with interest, and established the judgment as a lien on any interest they acquired under the plaintiff’s conveyance to them. It follows that the decree in this action for the recovery of the purchase money must be and is affirmed.

Suit to Quiet Title.

[4] II. The circumstance that plaintiff did not retain title, but had conveyed the land to the Salyards by warranty deed with the usual covenants, would not alone defeat his right to maintain the action to quiet title. Section 4223 of the Code provides that “an action to determine and quiet the title of real property may be brought by any one, whether in or out of possession, having or claiming an interest therein, against any person claiming title thereto, though not in possession.” This statute enlarges, but does not limit, the jurisdiction of courts of equity in such cases (Wehrman v. Conklin, 155 U. S. 314, 15 Sup. Ct. 129, 39 L. Ed. 167); and, though there may be authorities to the contrary, the more recent decisions hold that, where the payment of a part of the purchase price has been deferred until title shall be veyance of the land with the usual covenants of warranty has such an interest therein as entitles him to maintain an action to quiet title. Styer v. Sprague, 63 Minn. 414, 65 N. W. 659; Sutliff v. Smith, 58 Kan. 559, 50 Pac. 455; Pier v. Fond du Lac Co., 53 Wis. 421, 10 N. W. 686; Begole v. Hershey, S6 Mich. 130, 48 N. W. 790. This is on the ground that he may be liable on the warranty and must obtain the relief in order to procure the deferred payment. If the record were such as to indicate an interest of plaintiff such as this, we would experience, in ascertaining whether the Merediths were interested in their land, no difficulty in harmonizing our previous decisions. See Norris v. McGaffick, 21 Iowa, 201; Marray v. Quigley, 119 Iowa, 6, 92 N. W. 869, 97 Am. St. Rep. 276. Though plaintiff executed a warranty deed, the situation has become such as to preclude liability on its covenants. Whatever interest the Salyards acquired under the deed, they have since transferred by quitclaim deed to Ethel Hounchin or Clarence Edwin Meredith, and so done in pursuance of a contract to keep them harmless. Manifestly no claim because of defect in title, then, may be successfully asserted against them, and, if not, the plaintiff is not in a situation ever to be required to respond in damages, owing to any breach of the covenants of Warranty; and as plaintiff is entitled to, and has obtained, judgment on the deferred payment, manifestly, as he is neither liable on the covenants of his deed nor under obligation to perfect the title, in order to be entitled to recover the deferred payment, he has no interest in the land which can be affected by any decree which might be entered, and for this reason cannot maintain the suit. The petition was rightly dismissed. Both decrees have our approval. Affirmed.

ADVANCE THRESHER CO. v. KLEIN. (Supreme Court of South Dakota. Oct. 3, 1911.)


Code Civ. Proc. § 127, subd. 1, provides that a counterclaim must be a claim existing in favor of a defendant and against a plaintiff, between whom a several judgment may be had in the action, and arising out of the contract or transaction set forth in the complaint as the foundation of plaintiff's claim, or connected with the subject of the action. Held that, where plaintiff sued defendant on several notes riven for the balance of the purchase price of a threshing outfit sold to defendant, under a contract by which plaintiff agreed to remedy any defects in the engine, etc., and defendant agreed to render plaintiff assistance while making such repairs, a claim by defendant for injuries sustained by his minor son by the negligence of plaintiff's servant while repairing the threshing engine was a cause of action arising out of the same transaction, and was avail

able as a counterclaim, although sounding in tort. [Ed. Note.—For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 49–51; Dec. Dig. § 29.*] Smith, P. J., dissenting.

Appeal from Circuit Court, Edmunds County; J. H. Bottum, Judge.

Action by the Advance Thresher Company against Ed Klein. From a judgment Overruling a demurrer to defendant's Coun

terclaim, plaintiff appeals. Affirmed and remanded. Chas. N. Harris and Clarence O. New

comb, for appellant. Barron & Barron and C. M. Stevens, for respondent.

McCOY, J. Plaintiff, who is appellant in this court, brought this action to recover from defendant, the respondent, a balance of $1,728.55 claimed to be due on six promissory notes set out in the complaint. To this complaint the defendant made answer admitting the execution and delivery of said notes, and as a counterclaim alleged that on or about April, 1909, plaintiff and defendant entered into a certain contract for the sale of a threshing rig, consisting, among other things, of a steam engine and separator, purchased from plaintiff by defendant for the agreed contract price of $4,412.50, and that the said notes mentioned in the complaint were given in consideration of a part of said purchase price under said contract; that under and by the terms of said contract of sale, and as a part of the same transaction, plaintiff agreed, upon notice and at defendant's request, to remedy any defects in said engine and to put it in good order, and that in and by the terms of said contract defendant agreed, upon request of plaintiff, to render assistance to plaintiff while repairing said engine; that pursuant to the said contract and about July, 1909, at the request of defendant, plaintiff sent one of its servants and agents to the farm of defendant to repair the said steam engine; that plaintiff's said servant and agent entered upon the work of repairing said engine, and while so acting, and as such servant and agent, and while so engaged in said work and in the performance of his duties within the scope of his authority, requested defendant's minor son, Andrew Klein, to assist him in the prosecution of said work; that while said son was so engaged in assisting the said servant and agent of plaintiff the said servant and agent of plaintiff so carelessly and negligently started up and operated said engine that it caught the foot and leg of said minor son under one of the wheels of said engine, and so drew said foot and leg under the wheel of said engine that the same was crushed, and the bones and flesh so mangled and mashed that it was necessary to amputate, and the defendant caused to be amputated the leg of said minor just below the knee; that at all the times herein set forth the said Andrew Klein was the minor son of defendant, and as such was under defendant's guardianship and in his custody, control, and employment; and plaintiff's said agent and servant requested Said minor son to assist him in said work as the ward and employé of defendant, and such assistance was rendered to plaintiff's said servant and agent under and in purSuance of the contract between plaintiff and defendant as hereinbefore set forth; that on account of said injury defendant was compelled to and did expend $550 for nursing and in medical attendance upon and medicine for said minor son, and said minor son has been rendered permanently lame and unable to perform work and labor, and defendant thereby deprived of the services of said minor son until he shall become of age, to his damage in the sum of $2,500. Wherefore defendant demands judgment against the plaintiff in the sum of $2,500, and that said amount, sufficient to cancel the amount due on said notes and the obligation set forth in plaintiff's complaint, be set off against the same, and that defendant have judgment for the balance thereof, together with costs. To this counterclaim plaintiff interposed a demurrer upon the grounds: (1) That said counterclaim is not founded upon the contract set forth in plaintiff's complaint, as a foundation of plaintiff's claim, or connected with the subject of the action; (2) nor does the counterclaim state a cause of action arising on contract, but is a separate and distinct cause of action founded on tort. The court overruled said demurrer, to which ruling the plaintiff excepted and now urges such ruling as error. The principal contention of appellant is that the counterclaim is not connected in any manner with the contract sued upon, namely the notes; that the notes sued upon form the basis of the cause of action; and that the counterclaim must be connected with the confract sued on, and form a part of the transaction of the giving of the notes only. We are of the opinion that this contention is not tenable. The consideration of this question involves the construction of subdivision 1, § 127, Code Civ. Pr. A like provision is found in the Codes of many other states. In the case of Story v. Story & Isham Commercial Co., 100 Cal. 30, 34 Pac. 371, the court held that the “transaction” comprehended within the meaning of this section of the Code is not limited to the facts set forth in the complaint, but includes the entire series of acts and mutual conduct of the parties in the business or proceeding between them which formed the

or fails to set forth in his complaint the entire transaction out of which the claim arose defendant may supplement this omission by setting forth in his answer the omitted facts, so that the entire transaction may be before the court. The plaintiff is not at liberty to select an isolated act or fact, which is only one of a series of acts or Steps in the entire transaction, and insist on a judgment on that fact alone, if the fact is so connected with others that it forms only a portion of the transaction. See, also, 34 Cyc. 6S6 and 687. In the case at bar, the notes set out in the complaint Constitute but a component part or portion of the entire transaction of the sale of the threshing machinery by plaintiff to defendant. The contract of Sale with all its mutual agreements and provisions, the acts of all the parties and their agents performed under and by virtue thereof in carrying out and performing the mutual provisions thereof, the repair of the engine, the assistance to be furnished in such repair on the part of defendant, are all parts of one and the same transaction, just as much as the giving or the payment or nonpayment of the notes sued upon. The question then arises, Was the alleged negligent injury to the defendant's son so connected with the transaction or subject-matter of the action as to constitute a proper counterclaim? The question, based largely on the New York decisions, seems to be well stated in 34 Cyc. 687 : “It is difficult to determine or to lay down a rule for determining when a cause of action set forth in the counterclaim is so connected with plaintiff's cause as to be allowable under the section allowing a counterclaim connected with the subject of the action, for the word “connected’ may have a broad signification; the connection may be slight or intimate, remote or near; the best rule for determining the required connection being that the counterclaim must have such a relation to, and connection with, the subject of the action that it will be just and equitable that the controversy between the parties as to the matters alleged in the complaint and in the Counterclaim should be settled in one action and by one litigation, and that the claim of one should be offset against or applied upon the claim of the other. But some connection between the claims themselves, independent of their being held by the parties to the action, is required, which may be shown from their originating in the same contract, or transaction, or both, involving some right or interest in the subject of the action. The term ‘connected with the subject of the action' should, however, be construed liberally with a view of settling disputes in one action as far as possible.” This same rule is quoted with approval and followed by this court in 930, 59 Am. St. Rep. 766, and again in Northwestern Port Huron Co. v. Iverson, 22 S. D. 314, 117 N. W. 372, 133 Am. St. Rep. 920. Keeping in view the principles that one of the most important purposes of the adoption of the code system of pleading was to avoid as far as possible a multiplicity of suits, and to enable parties to determine their differences in one action, and also that if it will be just and equitable that the controversy between the parties as to the matters alleged in the complaint and in the counterclaim should be settled in one suit and by one litigation, it would seem that the counterclaim of defendant in this action is proper under the provisions of section 127, Code Civ. Pr., although sounding in tort. This counterclaim is for damages alleged to have been caused by the negligent acts of the servant and agent of plaintiff while repairing the engine purchased by defendant from plaintiff. The said servant and agent was performing such services for plaintiff under and by virtue of the contract of sale out of which the notes sued upon arose; and the son of the defendant was also performing services for plaintiff in assisting in the repair of said engine under and by virtue of the same contract. Both were performing services and assuming to act in relation to the carrying out of the provisions and business created by the terms of the contract, as a part of the mutual obligations and conduct required thereunder between plaintiff and defendant. The alleged damages baving occurred under such circumstances and in such connection sufficiently connects the counterclaim with the subject-matter of the complaint, so as to render it equitable and just that both matters should be determined in one suit and by one litigation. The matters set out in the complaint and the matters set out in the counterclaim are intimately and closely connected, and have their origin in the same transaction. The said acts of said servant and agent of plaintiff, which constitute the negligence complained of in the counterclaim, were performed under and by virtue of the contract of sale which furnished the basis for the consideration of the notes sued upon. The order appealed from is affirmed, and the cause remanded for further procedure.

SMITH, P. J., dissents.

HANNAHS v. PROVINE et al. (Supreme Court of South Dakota. Oct. 26, 1911.)


An objection to the introduction of evidence

under an amended answer, filed during the

trial, on the ground that plaintiff has had no opportunity to meet the proof that may be introduced under it, was properly overruled, since it was intended to challenge the sufficiency of the amended answer; but plaintiff, if not prepared to proceed with the trial, must apply for a postponement. [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1408–1412; Dec. fig. § 420.*]

2. ContLNUANCE ($ 30*) — AMENDED PLEADINGS-DISCRETION OF COURT. Where, in an action to determine adverse claims to land, defendant relied on a tax deed, which the court, during the trial, held invalid, the refusal to grant a postponement, on the allowance of an amended answer alleging payment of taxes and improvements, was not an abuse of discretion, in the absence of any showing in support of the application for a postponement; plaintiff knowing or being bound to know, that defendant had paid taxes and had made improvements, and that the rights thereto must be adjusted to justify relief. [Ed. Note:-For other cases, see Continuance, Cent. Dig. §§ 99–112; Dec. Dig. § 30.*] 3. Continuance (§ 30*)—AMENDMENT OF ANSW. Eit. Under Laws 1903, c. 70, providing that no action for the recovery of land sold for taxes shall be commenced unless all taxes shall be paid or tendered, etc., an owner, suing for the recovery of taxable land, sold for unpaid taxes legally levied, should not be permitted to commence his action or to proceed without a tender or deposit of the sum required to redeem, and hence could not be prejudiced by refusal of a continuance, on allowance of a trial amendment to the answer setting up the taxes paid by defendant. [Ed. Note.—For other cases, see Continuance, Cent. Dig. §§ 99–112; Dec. Dig. § 30.*]


A tax deed, conveying taxable land sold for unpaid taxes legally levied, constitutes color of title, though void on its face; and a holder in good faith is entitled to compensation for improvements made on the premises, and taxes paid, on the owner recovering the property.

[Ed. Note.—For other cases, see Taxation,

Cent. Dig. §§ 1648–1649; Dec. Dig. § 834.*] 5 oping (§ 428*)—OBJECTIONs—TIME To


Where defendant, relying on a tax deed to defeat a suit by the owner for the recovery of the land, interposed an answer alleging that he and his grantor made valuable improvements on the premises in good faith under color of title, and which states the character of the improvements and the cost thereof, and that the same are on the land and worth what they cost, an objection on the ground that it is insufficient to justify the admission of evidence of the value of the improvements, was properly overruled, when made after issue joined by reply.

[Ed. Note.--For other cases, see Pleading,

Dec. Dig. § 428.*]

6. APPEAL AND ERRoR ($ 931*)—FINDINGs— PRESUMPTIONS. The findings of the trial court are presumptively correct, and will not be disturbed, unless it clearly appears that they are not sustained by the evidence; and the party complaining must show that fact. [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3762–3771; Dec. Dig. § 931.*] 7. TAXATION ($ 829*)—TAx DEEDs—RECo v ERY OF PROPERTY. An owner, in order to recover land sold for taxes, should not be required to pay the expenses incurred by defendant's grantor in tak

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