Citation Numbers: 181 Iowa 288
Judges: Gaynor, Preston, Stevens, Weaver
Filed Date: 10/18/1917
Status: Precedential
Modified Date: 7/24/2022
It is a general rule that depreciation in the value of real property will not afford a ground of rescission or deprive the party seeking the same of the right to a decree compelling specific performance, where the alleged depreciation is due to conditions existing at the time of the execution of the contract, and that were then known to the parties. The possibility of a change in the action of the Missouri River was well known to plaintiff at the time he entered into the contract, and depreciation of the land on account thereof does not entitle plaintiff to a rescission of the contract. Falls v. Carpenter, 21 N. C. 237; King v. Raab, 123 Iowa 632.
II. Plaintiff by amendment to his petition, also asks damages for the value of the temporary buildings- removed by the tenant, and because of his inability to sell the premises on account of defendant’s failure to perfect the title thereto, and for the difference in the market value March 1, 1915, and at the time of filing the amendment. What is said above disposes of plaintiff’s claim for damages on account of the depreciation in the land, and the court awarded him damages in full for the buildings, removed by the tenant.
In February preceding the trial, defendant finally perfected the title to the land and caused all liens and encumbrances, except the $8,500 mortgage executed to him by plaintiff, to be released of record. Defendant’s prayer for specific performance is not of the written contract as originally executed, nor as modified by concessions upon the part of the plaintiff, or oral agreement between the parties. Plaintiff at no time agreed to execute a $4,000 mortgage. The deed executed by defendant and delivered to him contained a provision for the assumption by plaintiff of a $4,000 mortgage to be executed by the defendant, which plaintiff agreed to pay. Plaintiff cannot be required to execute a note and mortgage upon the land to secure the payment thereof for $4,000, for the reason that he has neither in writing nor orally bound himself to do so. The written contract did not make time the essence thereof, but provided that defendant should furnish an abstract showing-title as - therein designated, within a reasonable time after ■March 1, 1915. The record shows that both parties were doubtless eager to consummate the sale, but, on account of defendant’s inability to comply with his agreements, but little progress was made toward a final settlement. Concessions were made to defendant by plaintiff; his action for specific performance was continued from time to time without appearance of record by defendant; plaintiff received an -assignment of the lease for the cropping season of 1915, .received the rent for that year, planted a portion of the land to wheat in the fall of 1915, moved thereon about March 1, 1916, and at the time of the trial, was in possession of the farm and had planted about ninety acres to corn, and had the rest of the tillable land prepared for
While defendant is not entitled to a decree requiring plaintiff to execute a note for $4,000 and secure the payment thereof by mortgage upon the premises in question, nevertheless, considering the concessions granted defendant, plaintiff’s acquiescence in the delay, and all other facts and circumstances surrounding the transaction, and the position in which the parties have voluntarily placed themselves, we are reluctant to reverse this case without remanding the same for further proceedings in the court below, in harmony with the views herein expressed.
The note executed by the clerk of the district court as a commissioner appointed by the court should be canceled and the mortgage released, and plaintiff given an opportunity to execute a note and mortgage for $4,000, due March 1, 1925, or, at his option, to have a cancellation of the $8,500 mortgage, and permission to execute a new note and mortgage for $12,500 due March 1, 1925, the amount found due plaintiff as damages to be paid by defendant, upon execution of note and mortgage. It will be observed that plaintiff’s wife did not sign the contract, nor is she made a party to this suit. Should plaintiff fail or refuse to execute note and mortgage in accordance with an election to be made by him, as above suggested, within a reasonable time to be fixed by the court, plaintiff’s petition and defendant’s cross-petition shall be dismissed by • the court, and defendant left to pursue any other remedy he may have to enforce payment of the balance due on the purchase price of said land, the court to make such decree or apportionment of the costs as shall appear to be just and equitable. — Reversed and remanded.