Middleton v. Klingler

HENDERSON, Justice

(specially concurring).

Vendees’ tender of possession of property was simply that and nothing more. Thereby, waste, deterioration, delinquent real estate taxes, or a great depreciation or substantial depreciation in land value would be completely bypassed and vendees would be financially exonerated. To simply hand real estate back, as a vendee, does not, oftentimes, place the vendor in a good position. To the contrary, it can place him in a very bad position. A vendee cannot breach a contract with impunity to avoid not only the principal obligation of the purchase price, but payment of taxes, waste committed on the property, use of the premises, etc. Vendees agreed to pay the total purchase price and to use the real estate “in a good and husbandlike manner,” which included keeping the improvements in good repair.

Vendors had an optional remedy. They could sue for specific performance or bring an action for recovery of the land, or foreclose upon the rights of the vendees. Other than settled South Dakota law, which I will cite, I also note that the express terms of this contract provided “or may use such other remedy or remedies as may be authorized by law.” In Jones v. Tschetter, 46 S.D. 520, 524, 194 N.W. 839, 840 (1923), the South Dakota Supreme Court quoted, with approval, the following language:

“The vendor in an executory contract for the sale of real property may maintain an action for specific performance, and is not limited to an action for damages for a breach by the vendee, or to an equitable proceeding to foreclose the vendor’s lien for the purchase price of the property.” ...

... The practically uniform rule, as laid down by the authorities in cases of this kind, is that, where the vendee of an executory contract for the sale of land refuses to make payment, the vendor’s remedy is in equity for specific performance, or at law for damages, or in this state ... for strict foreclosure_ (Citations omitted.)

Also, in Sweet v. Purinton, 40 S.D. 17, 24, 166 N.W. 161, 163 (1918), overruled on other grounds, First Fed. Sav. & Loan Ass’n v. Wick, 322 N.W.2d 860 (S.D.1982), this Court stated:

The vendor in all such cases has an optional remedy either to sue for specific performance, bring an action for recovery of the land, or, under the statute of this state ... foreclose the adverse rights of the vendee under such contracts. (Emphasis supplied.)

In conclusion, we are confronted with the sole issue of whether specific performance was available to the vendors under the terms of the contracts for deeds. Specific performance was an optional remedy available to them, not only under the law I have cited herein, but under the express terms of the agreement, which I have specifically excerpted.