Keller v. Lewis

Myrick, J.: The complaint of plaintiff alleged, that on the 25th of March, 1872, plaintiff was seized in fee of certain described premises, and on that day made a contract with defendant C. S. Lewis, for the sale and conveyance to her of said premises for $35,000, one-third payable in cash, and the balance on June 6th, 1872; that the first installment was paid, but defendant failed to pay the balance; that said defendant took possession of the premises, and afterwards abandoned the land and contract. And plaintiff prayed judgment of forfeiture of the contract, that plaintiff’s title be quieted against it, and that defendants be debarred from asserting any claim to the land or money paid.

[468]The answer denied that defendant Lewis ever acquired possession, but admitted that she partly acquired possession, and was prevented for acquiring exclusive possession by the presence of adverse claimants; alleged willingness to complete the contract, but that she was prevented by the adverse claims; set up matters for the purpose of defeating plaintiff’s action, and to entitle defendants either to rescind or to insist on the contract, at their option, and the defendants filed a cross-complaint alleging the same matters.

The Court below, after hearing the case, filed findings, and rendered judgment for plaintiff, as prayed for in his.complaint. Defendants moved for a new trial, which was denied, and they appealed. On such appeal, this Court, in its opinion (see opinion filed July 16th, 1878), held, that “ the decree of the District Court should have fixed a day within which the defendants should pay the balance due upon the contract, and costs, etc., or be forever foreclosed of all right or interest in the lands, or to a conveyance thereof,” and this Court at the foot of said opinion made the following order: “ Judgment and order reversed, and cause remanded, with directions to the Court below to render a decree in accordance with the views herein expressed.”

Upon the going down of the remittitur, the Court below made and entered its order and decree, March 21st, 1879, reciting the matters of the hearing, findings, decree, appeal, and the judgment of this Court and remittitur, and adjudged and decreed, in accordance with the decision and judgment of the Supreme Court, that within sixty days from that day, that is to say, on or before May 19tli, 1879, the defendants pay to plaintiff the balance due on the contract, to wit, $23,333.33, and interest from March 25th, 1872, to date of payment, at the rate of ten per cent, per annum, and $122.75, plaintiff’s costs; or in case of failure of such payment, it ivas adjudged and decreed that defendants, from and after said 19th of May, 1879, be forever barred and foreclosed of all right or interest in the land, and the moneys paid under said contract. It was further adjudged, that defendants take nothing by reason of their cross-complaint. The present appeal was taken by defendants from the judgment ' of March 21st, 1879.