
    BURTON, et ux., Appellants, v. RYTHER et ux., Respondents
    (161 N. W. 350.)
    ( File No. 4060.
    Opinion filed February 16, 1917.)
    1. Vendor and Purchaser — Rescission by Vendee — Vendor’s Inability to Fulfill, Necessity of Showing.
    Before a vendee of realty who has made partial .payments on purchase price can repudiate his contract of purchase and recover the sums ¡paid, when, no question of fraud or misrepresentation is involved, he must show that vendor is unwilling or unable to fulfill terms of the contract, or lias committed some act entitling vendee to rescind.
    2. Same — Vendor’s Failure to Tender Deed, to Pay Taxes,, Immateriality of, When Vendee in Default.
    Where, under a land purchase contract,, vendee is professedly unable to perform by paying balance of purchase .price pursuant to contract, the failure of vendor to tender a deed of conveyance thereunder, or to pay taxes, is immaterial, and such failure does not entitle vendee to recover the amount already paid; the contract providing that upon default in .payment of balance of purchase money, payments already made should be forfeited and retained as liquidated damages. So held, where vendor’s deed was deposited in bank at which interest had been .paid, and vendee’s sole ground for refusing to pay balance due was that he did not have and could not obtain the money, and not because of vendor’s failure to tender deed and to pay taxes.
    3. Same — Retaking Possession by Vendor, Effect on Vendee’s Right to Recover Purchase Money.
    Where vendee under a land purchase contract was in default in .payment of balance of purchase price, the fact that vendor retook possession, the undisputed evidence showing that this was done by consent of vendee, who sold to vendor certain coal and hay remaining on the premises and voluntarily gave up possession, is no ground for recovery of purchase money paid under the contract.
    Appeal from. 'Circuit Court, Pennington County. Hon, Liivi McGee, Judge. Action, by Robert Burton and. wife, _against Lawrence R. Ryther and wife, to recover purchase money paid under a contract of sale of realty. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal.
    Affirmed.
    /. M. Hodgson, for .Appelllants.
    
      Buell & Demi, for Respondents.
    (1) To point one of t-he opinion, Appellant cited: Hogan v. Bechtel, 27 S. D. 98; Barnes v. Clement, 12 S. D. 270; Wood-ford v. Kelley, 18 S. D. 615; Bedow v. Tonkin, 5 S. D. 432.
    (2) To point two of the opinion, Appellant cited: Ink v. Rohrig, 27 S. D. 548; Spiolek v. Hatch, 21 S. D. 386; Maryland Steel Co. ‘v. United States, 235 U. S'. 451, 59 Law Ed. 312; Hogan v. Bechtel, 27 S. D. 98; Barnes v. 'Clement, 12 S. D. 270?
    Respondent cited: Spolek v. Hatch, 21 S. D. 386, 113 N. W. 75; Hogan v. Bechtel, 27 S. D. 98, 129 N. W. 914; Barnes v. Clement, 12 S. D. 270, 81 N. W. 301; Hogan v. Bechtel, 27 S. D. 98, 129 N. W. 914; Haill v. Yaryan, (Idaho), 138 Pac. 339; List v. Moore, (Cal.) 129 Pac. 962; Clock v. Howard, (Cal.) 55 Pac. 713.
    (3) To point three of the opinion, Appellants1 cited: Barnes v Clement, 12 S. D. 270; Weitzel v. Leyson, 23 S. D. 367; Kicks v. State Bank, 12 N. D. 576, 98 N. W. 408; Brewster v. Wooster, 131 N. Y. 473-, 30 N. E. 489; Todd v. Leach, (Ga.) 28 S. E. 43; Todd v. McLaughlin, (Mich.) 84 N. W. 146; Carter v. Fox, (Cal.) 103 Pac. 910.
   POLLEY, J.

Plaintiffs and defendants entered into a contact whereby defendants agreed h> sell, and plaintiffs agreed to purchase, a house and certain lots in Rapid 'City, including the furniture and furnishings contained1 in said house. The consideration agreed on was $9,000; $1,000 was paid in cash, and plaintiffs were given possession of the property. The 'balance of $8,000 was to be paid at the end of one year, to-wit, on the 10th ■day of November, 1913. The contract provided that, if the said deferred payment was not made when due, said sum of $1,000 already paid, together with interest on the deferred payment and certain. sums plaintiffs were to expend for improvements on the property, should be forfeited h> defendants as liquidated damages; possession of the property was .to be restored' to defendants, and plaintiffs’ rights were to be terminated. Plaintiffs paid the interest and1 paid1 for the improvements agreed' upon, amounting in all, with the $1,000 cash payment that ‘had been made, to a little over $1,800, but failed to pay the 'balance of the purchase price when k became due; whereupon defendants re-entered and took, and have since retained,, possession of the property. Thereafter plaintiffs commenced this action for the recovery of the money they haid paid under the contract. Defendants had judgment, •and plaintiffs appeal.

By their answer, the defendants admitted the facte as above stated; and, by way of affirmative defense, alleged that the rental value of the premises during the time plaintiffs were in possession thereof was $150 per month; and further alleged that when the final payment became due plaintiffs not only failed, neglected, and refused to pay the same, or any part thereof, but represented to defendants that they were unable to pay the same, or any part thereof, and1 voluntarily surrendered the possession of said premises to defendants, and thereby terminated and abandoned the said contract and all their rights thereunder.

The trial court found as a fact that the rental value of the said property, during the time it was occupied by appellants, was $150 per month; that at the time the $8,000 payment became due the plaintiffs were wholly unable to pay the same; and that they never tendered said amount to respondents nor demanded a conveyance of the title to the said premises. The court further fo-und that the respondents were ,at all times, ready, able, and willing to convey to appellants' a title such as they contracted for, and that on or 'betumeen the 10th and 12th days of November, 1913, respondents executed and caused to be tendered to- appellants a proper conveyance of said premises on condition that appellants pay the balance due on the purchase price; that appel-r hints failed and refused to pay the same, or any part thereof. The court further found that on the 13th day of November, 1913, appellants informed respondents that they -were unable to pay the balance due on the purchase price of the property, and expressed their intention to- abandon said premises and surrender possession to respondents, and to terminate and relinquish- all their rights ■under the said contract; that appellants did, on the said 13th day of November, abandon -and1 surrender said! premises and terminate all their rights -under the said contract, and have, at no time, performed or attempted to perform' said 'contract. As a conclusion of law, the court found that respondents had suffered damages sufficient in amount to offset the amounts that 'had been paid and expended by appellants under the contract.

As grounds for a reversal of the judgment, appellants assign the insufficiency of the evidence -to sustain the findings of fact and errors of law on the part of the trial court in the admission of evidence :of the "value of the use and occupation of the premises involved during the time the same were occupied by the appellants.

It is not necessary tot take up these assignments and consider them )in detail, because, a® we view the facts, appellants have not shown themselves entitled to recover upon any theory of the case. Before a party who as vendee has contracted to purchase real estate and has made partial payments on the purchase price thereof can repudiate such contract and recover from the vendor the sums so paid on the purchase price, assuming of course that no question of fraud or misrepresentation is involved, he must show that the vendor is unable or unwilling to fulfill the terms of the contract, or that such vendor has committed some act that will entitle the vendee to rescind the contract.

Appellants base their right to recover upon the grounds: First, that respondents did not tender appellants a deed of conveyance conveying to them title to the premises involved; second, that, respondents’ title was not free from incumbrance on the 10th day lof November, 19x3; and, third, that respondents reentered and took possession of the premises without allowing appellants a reasonable time to make payment. Neither.of these contentions lis supported -by the record. It is true that, at the time the final payment became due and was demanded, the 1912 taxes against the property • had not been paid. And it is also true that respondents did not personally tender to* appellants a deed conveying the property to thenr; but they did execute such a ■ deed and leave it at the bank where appellants ¡had' paid the interest, with' instructions to deliver it to appellants upon payment of the balance due on the purchase price. But these facts! were lin no wise responsible for appellants’ failure to pay the balance of the'purchase price, nor were these facts assigned at the time as reasons for their failure to make such payment. The undisputed evidence shows that at -the time said payment became due and on the following day respondents made repeated requests upon appellants to .pay said balance, and that the only reason they gave, at that .time, for not paying- the same was that they did not have, and could not get, the money with which to make such payment. No- objection was made to respondents’ title, and no- demand was made for a deed, and appellants do not pretend that they could have paid the balance of the purchase price if said' taxes had 'been paid and proper deed been tendered. If appellants had tendered to respondents the balance due on the purchase price and demanded the execution and delivery of a deed conveying title free from any incumbrance, and respondents had refused to pay said taxes or to execute and deliver such deed, air entirely different case would have been presented.

The facts relative to respondents’ taking’ possession of the premises do not show that respondents’ acts were wrongful or .unlawful. On the second day after the said- filial payment became due and after appellants had repeatedly refused to make such payment, Mrs. Ryther, one of the respondents, went to the house and was admitted 'by one of appellants’ tenants. Neither of appellants was present, but Mr. Burton (one of the appellants) was telephoned- for and immediately went to the house. Just what was said between Mrs. Ryther and Mr. Burton relative to Mrs. Rj-ther ’Waving come to -take possession e-f -the premises is in dispute, but it is not contended that -Mr. Burton made any objection to her remaining in the house, and it Is not disputed that they proceeded in an amicable manner to. make arrangements for a change of possession. They agreed upon -the time when appellants should move out and when respondents should move in, and1 such agreement was fully carried o-ut by both parties. Appellants had a small quantity of coal and 'hay on the premises-at the time. This they did not care to move; and after agreeing upon a price, -said articles were purchased and paid for in cash by respondents, and a complete settlement was had- without any claim or -demand by appellants for a return of any part of the purchase price that had been- paid.

Und'er these circumstance's, appellants were not entitled lo recover the amount that had been paid under the -terms of the contract, and the judgment'and- order appealed from are affirmed.  