Behler v. Kunde

PARKER, J.,

pro

tem.

Plaintiff commenced an action to secure a decree compelling the specific performance of a contract of partition entered into between plaintiff and defendant Arthur Kunde. The remaining defendants are fictitious persons and upon the opening of the trial the action was dismissed as to these.

The parties hereto, plaintiff' and defendant, on July 31, 1923, purchased certain parcels of land and held and farmed o the same as tenants in common until on or about May 19, 1925. On this last date they agreed to partition the property so held by them and in pursuance of this agreement a written document evidencing the understanding of the par

[733]

ties was prepared and executed. The written agreement sets forth the joint ownership of the real property therein described, and recites the fact that it is the desire of the parties to divide the same. It further provides that a division of the lands, together with the erections and buildings thereon, and also the livestock and other effects upon said premises, shall be made. By its terms plaintiff agreed to execute a good and sufficient deed to the defendant, conveying unto him certain of the real property described. The remaining part of the lands jointly owned was to become and be the sole and exclusive property of plaintiff, defendant agreeing to execute and deliver to plaintiff a good and sufficient deed conveying all of his right, title and interest in and to the lands agreed, as being the part that plaintiff was to have. The land was to be surveyed within thirty days, so that a certain division line mentioned in the agreement might accurately be determined, the expense of said survey to be equally borne by the parties. The agreement further provided that the waters of a certain spring, known as and described as “Winegartner Spring,” shall be thereafter owned by the parties, one-half each, and it was agreed that no more taps were to be put on the pipe leading from said spring by either party without having obtained the consent of the other party so to do. It was further agreed that the defendant should have all the water rights which the parties may have in and to the water flowing from a certain place described in the agreement as Brockman Canyon. The defendant was to pay the plaintiff $1,000 as a further consideration for the division of the lands. The agreement also provided for the manner of division of the personal property. This property has been divided and the agreement respecting it fully executed and consummated. Likewise, the agreement provided for an accounting of past operations and this, too, has been consummated, or at least is not involved herein. Defendant, though requested so to do, has failed and refused to execute the deed to plaintiff, though plaintiff has tendered to defendant his deed as in the agreement provided, hence this action.