
    JUEL et al, Respondents, v. WARDWELL et al, Appellants.
    (211 N. W. 456.)
    (File No. 5874.
    Opinion, filed December 31, 1926.)
    1. Vendor and Purchaser — Rescission—Vendor's Deed Direct to One Who Bought from Purchaser at Purchaser’s Bequest, Was ■ Performance of Contract.
    Where vendor deeds property direct to one -who purchased from purchasers, at request and under direction of purchasers and with their full consent and approval, such conveyance was performance of land contract, and was not a rescission and cancellation of contract by vendor.
    42. Suhrogation — Vendor, Having Been Compelled to Pay Mortgage Assumed by Purchaser, Could Recover from Purchaser, Where Mortgagee Assigned Mortgage and Indorsed Note Without Recourse to Vendor.
    Where purchaser, under contract for sale of land, assumed mortgage, and vendor was compelled to pay same, he could recover from purchaser, where vendor had conveyed direct to one who had purchased from purchaser, and where mortgagee had indorsed note without recourse, and turned it, together with assignment of mortgage, over to vendor.
    Note. — See, Headnote (1), American Key-Numhered Digest, Vendor and purchaser, Key-No. 151, 39 Cyc. 1555; (2) Suhrogation, Key-No. 18, 37 Cye. 466 (Anno.).
    Appeal from Circuit Court, Minnehaha County; Hon. H. B. Rudolph, Judge.
    Action by M. P. Juel and another against Edgard Wardwell and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    
      Kirby, Kirby & Kirby, of Sioux Falls, for Appellants.
    
      A. B. Carlson, of Canton, for Respondents.
   POLLEY, J.

On and for some time prior to the 23d day of July, 1919, plaintiffs were the owners of a half section of land in Lincoln county. On said date plaintiffs entered into a contract with defendants, whereby plaintiffs agreed to sell and defendants agreed to purchase the said land. In consideration for the sale, defendants paid $3,000 when the contract was executed; they assumed and agreed to pay one Groenewald $4,000, evidenced by a promissory note and secured by a mortgage on the land; they were to pay $7,000' on the xst day of March, 1920, and other payments not material to the ‘ disposition of the this case. Plaintiffs were to remain in possession of the land until the $7,000 payment was made, at which time plaintiffs were to convey the land to defendants.

After the execution of the contract, and prior to the 30th day of March, 1920, defendants negotiated a sale of the land to the Harrisburg Loan Company and turned the contract over to one Kundert, who was an officer of the said loan company. Thereafter at the request of defendants, and as a matter of convenience to all parties concerned, plaintiffs conveyed the land directly to Kundert, who thereafter conveyed it to said loan company. When the $4,000 note that had been assumed by defendants came due, demand was made upon them, and also upon Kundert and the loan company, to-pay the same, less the sum of $1,300 that had been paid, either by defendants or one of the parties to whom the land was conveyed, and the owner of the said mortgage brought suit against plaintiffs for the balance due thereon, and they were compelled to and did pay the same. Plaintiffs then brought this action to recover from defendants the amount so paid by plaintiffs. Judgment was for plaintiffs, and defendants appeal.

It is contended by appellants that, in deeding the property to Kundert, plaintiff rescinded and canceled the contract with appellants and substituted Kundert in their place, and that they thereby 'became relieved from further liability on the contract. This contention is wholly refuted by the evidence. The evidence shows and the court found that the property was conveyed to Kundert, at the request and under the direction of appellants, and with their full consent and approval. This being true, the conveyance to Kundert was as much a performance of the terms of the contract as though the conveyance had been made to appellants.

When plaintiffs paid the balance due on the Groenewald note, Groenewald indorsed the note without recourse and turned it, together with an assignment of the mortgage, over to plaintiffs. Appellants contend that this transaction does not constitute payment of the note, but that the money was used by plaintiffs to purchase the note and mortgage and retain the same as an. investment. There is nothing in the record to suggest any such intention on the part of plaintiffs. The evidence shows that plaintiffs were compelled to pay the note, and, under the agreement contained in the deed, plaintiffs are entitled to recover the same from appellants. Klein v. Olstad, 50 S. D. 310, 210 N.W. 18.

The judgment and order appealed from are affirmed.  