The Federal Reporter (Annotated), Volume 174: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. January-March, 1910. Page: 96
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174 FEDERAL REPORTER.
MESA MARKET CO. v, CROSBY et at
(Circuit Court of Appeals, Eighth Circuit. October 11, 1909.)
No. 2,842.
1. LANDLORD AND TENANT (1 5*) - CONTRACTS OF SALE - VALIDITY OF CONDI-
TION-CONVERSION OF CONTRACT INTO LEASE ON DEFAULT.
A provision in a contract for the sale of real estate, under which the
purchaser is given possession, that if he shall make default in the per-
formance of any of his engagements the vendor may resume possession
and terminate all rights of the purchaser, and that in such case the con-
tract shall become one of lease, and any payments by the purchaser or im-
provements made on the property shall be considered as rental, is valid
and enforceable.
[Ed. Note.-For other cases, see Landlord and Tenant, Cent Dig. 1 3;
Dec. Dig. 5.*]
2. VENDOR AND PURCHASER (5 148*)--BEACH OF CONTRACT BY VENDOR--DE-
MAND FOR PAYMENT IN PARTICULAR MANNER.
Where vendors of real estate in Colorado resided in Boston, in the ab-
sence of a contrary provision in the contract, the purchase money was pay-
able there; and where tender of the deed was made by their agent in Colo-
rado, a demand for payment by certified check was for less than legally
demandable, and did not constitute a substantial breach of the contract.
[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 5
293; Dec. Dig. 5 148*]
3. VENDOR AND PURCHASER (I 133, 350*)---ACTION BY PURCHASER FOR BREACH
OF CONTRACT-DEFECT IN TITLE-BURDEN OF PROOF.
Under a contract for the sale of real estate, which required the ven-
dors to convey "by a good and sufficient warranty deed in the usual
form," they are not bound to convey by a title deducible of record; and
where the purchaser refused to accept the deed tendered, and sued at law
for damages for breach of the contract, on the ground that the deed ten-
dered did not comply with its requirements, he assumes the burden of
proving that it did not convey a good title.
[Ed. Note.-For other cases, see Vendor and Purchaser, Cent Dig.
234-237; Dec. Dig. 55 133, 850.*]
4. COVENANTS ( 68*)--o VENANTS RUNNING WITH THE LAND-COVENANT BY
CONTRACT PURCHASER TO KEEP BUILDINGS IN REPAIR.
In a contract for the sale of real estate, under which the purchaser is
given possession, and which provides that it shall be binding on the heirs,
executors, assigns, and successors of the respective parties, a covenant
by the purchaser to make all repairs proper and needful for the suitable
maintenance of the buildings and improvements then on the property is
one which runs with the land and is binding on an assignee of the pur-
chaser.
[Ed. Note.-For other cases, see Covenants, Cent. Dig. 15 65, 66; Dec.
Dig. 608.*]
5. APPEAL AND ERROR (5 173*)-ISSUES AND QUESTIONS IN LOWER COURT--A-
SEATING NEW DEFENSE IN APPELLATE COURT.
Where the answer to a cross-complaint in an action at law, pleading
a counterclaim, was merely a general denial, and the issue of fact thus
joined was tried, submitted to the jury, and determined without objection,
and without any other defense to the counterclaim being suggested, the
question whether defendant was barred by estoppel from maintaining
such counterclaim cannot be considered for the first time in the appellate
court.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 1102;
Dec. Dig. 173.*]
Philips, District Judge, dissenting.
'For other cases see same topic & i NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
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The Federal Reporter (Annotated), Volume 174: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. January-March, 1910., legislative document, 1910; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38220/m1/108/: accessed May 7, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.