Walkin v. Nokken

SMITH, J.

Action for specific performance of a contract for conveyance of real estate. The contract is identical in all material parts with one construed by this court in Weitzel v. Deyson, 23 S. D. 367, 121 N. W. 868 . The appeal is from an order overruling a demurrer to the complaint. The contract is made a part of the complaint. The complaint alleges:

“2. That the said land was not, at the date of said contract, the property of the plaintiff, but that he contemplated procuring •the same as was then, well known to the defendant, for the purpose of carrying out the terms of the said contract on his part; that tine plaintiff did thereupon procure Samuel F. Spencer the then owner of said land, to approve the said contract of' the sale thereof, and so informed the defendant, and did proceed to and did perfect ithe title to said land; and did thereafter, on or about November 25, 1914, procure a duly certified abstract showing clear and perfect title of said land in the name of said owner, and did cause said abstract to be delivered on said date to the defendant, who thereupon caused' the same to be examined by his attorney, * * * and the said attorney * * * pronounced the title to said land clear and perfect in the said Samuel F. Spencer, of which the defendant was then and there advised'; and the plaintiff had . at the same time also procured the duly executed and duly acknowl-eged warranty deed of the said Samuel F. 'Spencer for the said *291 land, and was then and there on November 27th. ready, able and willing to convey said land -to the defendant and so informed him, * * * but that the defendant then and there refused to carry out the terms of the said contract on his part, * * * and' positively refused to accept or receive plaintiff’s' conveyance of said’ land, or to- make payment añd settlement for the same as provided by the said contract.”

“3. That said plaintiff has done and performed all the terms of -said contract on his part; that he has ever since been and still is ready, able 'and willing to perform the said agreement, and so offers to do. * * *”

[1] This court is unable to agree as to the meaning or effect of the allegations in this -complaint. The contract made a part of the complaint fecites the payment of $250 as “earnest money and in part payment of the following described property * * * which I have this day sold1 and agreed to convey to said E. O. Nokken * * *■” The contract is signed by John Walkin and his signature is followed by a separate paragraph signed by" E. O. Nokken, by which Noklcen agrees to- purchase the land for the price and upon the terms “above mentioned.” The complaint alleges that plaintiff procured the approval of Samuel E. Spencer, the owner of -the land, to the contract and the sale of said land. The plaintiff, under the terms of the contract, -binds himself to convey by a Warranty deed, as grantor. Such; a contract is binding if the purchaser knows that his vendor is' not the -owner, and such knowledge is alleged in- the complaint and admitted by the -demurrer. Weitzel v. Leyson, 23 S. D. 367, 121 N. W. 868 .

[2,3] The complaint alleges that plaintiff procured- Samuel E. Spencer th-e 'owner of the 1-and, to> execute -and acknowledge a warranty deed, but does- not name the grantee in the deed. Was the plaintiff such- grantee? We are unable to determine from the allegations of the complaint. T-f plaintiff was- such grantee, it is clear that he has not furnished a sufficient abstract, for the only allegation in the -complaint is that 'the abstract tendered showed only a good title in Spencer, the owner of the land, and not ih- plaintiff. If the deed tendered was from' Spencer to Nokken, the latter w-as not required te» accept it, being the deed- of a third person and not that of plaintiff as required by the contract. As to this v-ital fact, the complaint is wholly, indefinite -and *292 uncertain, and neither the trial court nor this court should be required to guess what the facts may have been. The proper remedy for such a defect is not through a demurrer, but by motion to make the complaint more definite and specific. Dunlap v. C., M. & St. P. Ry. Co., 32 S. D. 581, 144 N. W. 226 ; Sogn v. Koetzle, 160 N. W. 520 .

For this reason the demurrer was properly overruled, and the order of the trial court is affirmed.

McCOY, J. I concur in the result only.