Agreement or Contract for Deed for Sale and Purchase of Real Estate a/k/a Land or Executory Contract
SOUTH DAKOTA STATUTES
DEEDS AND CONVEYANCES
TITLE 43
CHAPTER 43-25
43-25-1. Requisites for transfer of certain estates
An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing.
Source: CivC 1877, § 622; CL 1887, § 3245; RCivC 1903, § 938; RC 1919, § 540; SDC 1939, § 51.1401.
43-25-2. Conveyance of interest in property by owner out of possession.
Any person claiming right or title to lands, tenements, or hereditaments, although he, she, or they may be out of possession, and notwithstanding there may be an adverse possession thereof, may sell, convey, and transfer his or her interest in and to the same in as full and complete a manner as if he or she were in actual possession of the lands and premises intended to be conveyed; and the grantee or grantees shall have the same right of action for the recovery thereof, and shall in all respects derive the same benefit and advantage therefrom as if the grantor or grantors had been in actual possession at the time of executing the conveyance.
Source: SL 1899, ch 109; RCivC 1903, § 996; RC 1919, § 602; SDC 1939, § 51.1409.
43-25-3. Conclusiveness of grant of estate in real property--Exception.
Every grant of an estate in real property is conclusive against the grantor and everyone subsequently claiming under him, except a purchaser or encumbrancer who, in good faith, and for a valuable consideration, acquires a title or lien by an instrument that is first duly recorded.
Source: CivC 1877, § 629; CL 1887, § 3250; RCivC 1903, § 943; RC 1919, § 551; SDC 1939, § 51.1410.
43-25-4. Words of inheritance or succession not required to transfer fee in real property.
Words of inheritance or succession are not requisite to transfer a fee in real property.
Source: CivC 1877, § 618; CL 1887, § 3241; RCivC 1903, § 934; RC 1919, § 536; SDC 1939, § 51.1312.
43-25-5. Warranty deed--Standard form.
The standard form of warranty deeds in this state is as follows:
WARRANTY DEED
________, grantor, of ________ county, of ________, for and in consideration of ________ dollars, grants, conveys and warrants to ________, grantee, of ________ P. O. the following described real estate in the county of ________ in the State of South Dakota: __________
__________
__________
__________
Dated this ________ day of ________, 20____.
(Signature) ________________________
(ACKNOWLEDGMENT)
Source: SL 1911, ch 257, § 1; RC 1919, § 542; SDC 1939, § 51.1403.
43-25-6. Implied covenants and warranties in deed.
Every such instrument duly executed as required by law shall be a conveyance in fee simple of the premises described to the grantee, his heirs, and assigns, with covenants on the part of the grantor, his heirs, and personal representatives,
(1) That he is lawfully seized of the premises in fee simple, and has good right to convey the same;
(2) That the premises are free from all encumbrances;
(3) That he warrants to the grantee, his heirs, and assigns, the quiet and peaceable possession thereof; and
(4) That he will defend the title thereto against all persons who may lawfully claim the same.
Such covenants shall be obligatory upon any grantor, his heirs, and personal representatives, as fully and with like effect as if written at length in such deed.
Source: SL 1911, ch 257, § 1; RC 1919, § 542; SDC 1939, § 51.1403.
43-25-7. Quitclaim deed--Standard form.
The standard form of quitclaim deeds in this state is as follows:
QUITCLAIM DEED
________, grantor, of ________ county, state of ________, for and in consideration of ________ dollars, conveys and quitclaims to ________, the grantee, of ________ P. O. all interest in the following described real estate in the county of ________ in the State of South Dakota
__________
__________
__________
Dated this ________ day of ________, 20____.
(Signature) __________________________
(ACKNOWLEDGMENT)
Source: SL 1911, ch 257, § 2; RC 1919, § 542; SDC 1939, § 51.1403.
43-25-8. Right, title, and interest conveyed by quitclaim deed--After-acquired title.
Every such instrument, duly executed, shall be a conveyance to the grantee, his heirs, and assigns, of all right, title, and interest of the grantor in the premises described, but shall not extend to after-acquired title, unless words expressing such intention be added.
Source: SL 1911, ch 257, § 2; RC 1919, § 542; SDC 1939, § 51.1403.
43-25-9. Other forms of deeds unaffected by standard forms of warranty and quitclaim deeds.
The provisions of §§ 43-25-5 to 43-25-8, inclusive, do not preclude the use, affect the validity, or control the interpretation of other forms of warranty and quitclaim deeds.
Source: RC 1919, § 543; SDC 1939, § 51.1403.
43-25-10. Use of word "grant" in conveyance--Implied covenants, action to enforce.
From the use of the word "grant" in any conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs, and assigns, are implied unless restrained by express terms contained in such conveyance:
(1) That previous to the time of the execution of such conveyance, the grantor has not conveyed the same estate, or any right, title, or interest therein, to any person other than the grantee;
(2) That such estate is, at the time of the execution of such conveyance, free from encumbrances done, made, or suffered by the grantor, or any person claiming under him.
Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance.
Source: CivC 1877, § 628; CL 1887, § 3249; RCivC 1903, § 942; RC 1919, § 548; SDC 1939, § 51.1415.
43-25-11. Use of words "remise," "release," or "quitclaim" in conveyance--Implied covenants.
From the use of the words "remise," "release," or "quitclaim" in any conveyance by which an estate or interest in real property is to be passed, the following covenants on the part of the grantor to the grantee, his heirs, or assigns, are implied, unless restricted by express terms contained in such conveyance:
(1) That previous to the time of the execution of such conveyance the grantor has not conveyed the same estate or any right, title, or interest therein to any person other than the grantee; and
(2) That such estate is at the time of the execution of such conveyance free from encumbrances made, done, or suffered by the grantor.
Source: SL 1909, ch 179, § 1; RC 1919, § 549; SDC 1939, § 51.1416.
43-25-12. Prior unrecorded conveyance--Rights of purchaser in good faith.
Any person holding real estate or any interest therein under a conveyance in the terms of § 43-25-11 shall be deemed a purchaser in good faith and for a valuable consideration, unless such person at the time of the execution and delivery of such conveyance shall have had actual notice or knowledge of a prior unrecorded conveyance affecting the title to such real property.
Source: SL 1909, ch 179, § 2; RC 1919, § 550; SDC 1939, § 51.1416.<br />
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43-25-13. Lineal and collateral warranties abolished–Exception.<br />
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Lineal and collateral warranties, with all their incidents, are abolished, except as provided by §§ 43-25-14 to 43-25-19, inclusive.<br />
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Source: CivC 1877, § 633; CL 1887, § 3254; RCivC 1903, § 947; RC 1919, § 555; SDC 1939, § 51.1414.<br />
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43-25-14. Heirs and devisees answerable for covenant or agreement with reference to land received by descent or devise.<br />
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The heirs and devisees of any person who has made any covenant or agreement in reference to the title of, in, or to any real property, are answerable upon such covenant or agreement to the extent of the land descended or devised to them, in the cases and in the manner prescribed by law.<br />
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Source: CivC 1877, § 633; CL 1887, § 3254; RCivC 1903, § 947; RC 1919, § 555; SDC 1939, § 51.1414 (1).<br />
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43-25-15. Presumption as to passing of fee simple title–Exception.<br />
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A fee simple title is presumed to be intended to pass by a grant of real property unless it appears from the grant that a lesser estate was intended.<br />
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Source: CivC 1877, § 633, subdiv 2; CL 1887, § 3254, subdiv 2; RCivC 1903, § 947, subdiv 2; RC 1919, § 555 (2); SDC 1939, § 51.1414 (2).<br />
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43-25-16. Condition precedent in grant of real property–Performance necessary to pass estate.<br />
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An instrument purporting to be a grant of real property, to take effect upon condition precedent, passes the estate upon the performance of the condition.<br />
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Source: CivC 1877, § 633, subdiv 3; CL 1887, § 3254, subdiv 3; RCivC 1903, § 947, subdiv 3; RC 1919, § 555 (3); SDC 1939, § 51.1414 (3).<br />
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43-25-17. Subsequently acquired title passes by operation of law.<br />
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Where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title or claim of title thereto, the same passes by operation of law to the grantee or his successors.<br />
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Source: CivC 1877, § 633, subdiv 4; CL 1887, § 3254, subdiv 4; RCivC 1903, § 947, subdiv 4; RC 1919, § 555 (4); SDC 1939, § 51.1414 (4).<br />
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43-25-18. Grant made on condition subsequent defeated by nonperformance of condition.<br />
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Where a grant is made upon condition subsequent, and is subsequently defeated by the nonperformance of the condition, the person otherwise entitled to hold under the grant must reconvey the property to the grantor or his successors, by grant duly acknowledged for record.<br />
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Source: CivC 1877, § 633, subdiv 5; CL 1887, § 3254, subdiv 5; RCivC 1903, § 947, subdiv 5; RC 1919, § 555 (5); SDC 1939, § 51.1414 (5).<br />
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43-25-18.1. Action describing land and conditions of conveyance–Statement of changed conditions which make it impossible or impractical to hold lands for public purpose.<br />
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Notwithstanding the provisions of §§ 43-25-18 and 43-30-12, whenever any real property is, heretofore or hereafter, conveyed by any grant or devise to be held or used for any religious, educational, charitable, benevolent, or public purpose, with a condition subsequent annexed in the instrument of conveyance that in event the lands shall, at any time, cease to be held or used for the purpose set forth in such conveyance, title shall revert to the grantor or devisor or the heirs, and it appears in the judgment of the officers, trustees, or governing body of the grantee named in such conveyance that because of changed conditions or circumstances since the execution of such conveyance it is impossible or impractical to continue to hold or use the lands for the purpose mentioned in such conveyance and that the religious, educational, charitable, benevolent, or public object of the grantor or devisor, as set forth in such conveyance, may be prevented or defeated thereby, the grantee may file an action in the circuit court of the county in which the lands are situated, setting forth a correct description of such lands and the terms and conditions under which the lands are to be held or used, together with a comprehensive statement of the changed conditions and circumstances which render it impossible or impractical to continue to hold or use the lands for the purpose stated in the conveyance.<br />
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Source: SL 2005, ch 232, § 1.<br />
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43-25-18.2. Commencement and prosecution of action–Limitation.<br />
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In any action provided for in § 43-25-18.1, the heirs of the grantor, reversionary interest holder, or devisor, if known, shall be named as defendants and the action shall be commenced and prosecuted as provided for by existing law for actions against known defendants. If the names or addresses of the heirs of any such grantor, reversionary interest holder, or devisor are unknown, the action shall be commenced and prosecuted as provided by existing law for actions against unknown defendants. No such action may be commenced within seventy-five years from the execution of any conveyance.<br />
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Source: SL 2005, ch 232, § 2.<br />
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43-25-18.3. Hearing–Sale of lands and reinvestment in other lands on court finding allegations are true.<br />
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If, upon the hearing, it appears to the satisfaction of the court that the allegations in the action are true and that because of changed conditions or circumstances since the execution of such conveyance it is impossible or impractical to continue to hold or use the lands for the purposes limited in such conveyance and that the religious, educational, charitable, benevolent, or public object of the grantor, as set forth in such conveyance, may be defeated thereby, a decree may be entered authorizing the grantee to sell such lands for the highest price obtainable, and directing that the proceeds of the sale of such lands shall be reinvested in other lands suitable for the use or purpose set forth in the original conveyance, subject to any reversionary interest or other interest in the original conveyance.<br />
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Source: SL 2005, ch 232, § 3.<br />
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43-25-18.4. Title in fee simple free of conditions to purchaser of land.<br />
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No sale of lands under the decree of the court pursuant to §§ 43-25-18.1 to 43-25-18.6, inclusive, defeats the estate of the grantee named in the original conveyance because of the failure to continue to hold or use the land for the purpose named in such conveyance and is sufficient to convey to the purchaser of such land a good and sufficient title in fee simple, free from all conditions or limitations whatsoever, under which the land shall have been held or used.<br />
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Source: SL 2005, ch 232, § 4.<br />
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43-25-18.5. Court authorized to place conditions on sale proceeds.<br />
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As part of the decree or judgment entered in any action commenced under §§ 43-25-18.1 to 43-25-18.6, inclusive, the court may require that the real property be sold and that the proceeds from the sale be used for similar religious, educational, charitable, benevolent, or public purposes as provided in the original conveyance, and that the condition subsequent contained in the original conveyance attach to the sale proceeds upon such terms and conditions as the court may determine. The court may also require that the sale proceeds be used to purchase other real property or be put to such other uses consistent with the condition subsequent as the court determines.<br />
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Source: SL 2005, ch 232, § 5.<br />
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43-25-18.6. Inapplicability of provisions to severed mineral interests.<br />
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Nothing in §§ 43-25-18.1 to 43-25-18.6, inclusive, applies to severed mineral interests.<br />
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Source: SL 2005, ch 232, § 6.<br />
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43-25-19. Encumbrances defined.<br />
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The term “encumbrances” includes taxes, assessments, and all liens upon real property.<br />
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Source: CivC 1877, § 633, subdiv 6; CL 1887, § 3254, subdiv 6; RCivC 1903, § 947, subdiv 6; RC 1919, § 555 (6); SDC 1939, § 51.1414 (6).<br />
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43-25-20. Corporate deeds and mortgages–Execution, assignment, and release by officers of corporation–Acknowledgment.<br />
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Any officer of a corporation, authorized by the charter or articles of incorporation, the bylaws, or the consent of the stockholders or of the board of directors of such corporation, may execute deeds, mortgages, assignments of mortgage, releases of mortgage, and all other instruments in the name of such corporation and acknowledge the same on behalf of such corporation.<br />
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Source: SL 1905, ch 1, § 1; SL 1907, ch 2, § 1; RC 1919, § 544; SDC 1939, § 51.1404.<br />
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43-25-21. Corporate seal or acknowledgment as prima facie evidence of executing officer’s authorization.<br />
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The corporate seal of any corporation attached to a deed, mortgage, assignment of mortgage, release of mortgage, or other instrument executed and acknowledged by any officer of such corporation is prima facie evidence that such officer was duly authorized to execute such instrument on behalf of such corporation. Likewise, a corporate acknowledgment attached to or made part of any deed, mortgage, assignment of mortgage, release of mortgage, or other instrument executed by any officer of such corporation is prima facie evidence that such officer was duly authorized to execute such instrument on behalf of such corporation.<br />
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Source: SDC 1939, § 51.1404; SL 1999, ch 216, § 1; SL 2014, ch 47, § 16.<br />
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43-25-22. Mortgage or conveyance of real estate by unincorporated association–Adoption of resolution, notice–Execution of instrument.<br />
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Any unincorporated religious, benevolent, fraternal, charitable, or educational association may mortgage or convey any real estate which is owned by such association by adopting a resolution directing such mortgage or conveyance, which mortgage or conveyance shall be executed by a majority of the board of trustees or directors, or by the presiding officer, and shall be attested by the secretary of the association; provided, however, that any such resolution may be adopted at a regular meeting of such association, or a special meeting called for such purpose, and that notice of such proposed action shall be published in a newspaper of general circulation in the community in which such association has its place of meeting, once each week for two successive weeks prior to such meeting.<br />
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Source: SL 1943, ch 22; SL 1947, ch 32; SDC Supp 1960, § 11.1304; SL 1970, ch 248, § 1.<br />
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43-25-23. Recording of proceedings authorizing sale or mortgage of real estate by unincorporated association.<br />
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A certified copy of the adopted resolution authorizing the sale or mortgage of any real estate, and the affidavit of the publication of notice of sale, all as provided for in § 43-25-22, must be recorded at length by the register of deeds of the county in which the real property is situated and such records or certified copies of such records shall be prima facie evidence of the facts therein contained. Any proceedings taken and recorded before July 1, 1970, in the office of the register of deeds of the county in which the lands are situated which would have been a compliance with §§ 43-25-22 and 43-25-23 had the same been in effect as of the date of said recording are hereby declared to be valid.<br />
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Source: SL 1949, ch 25; SDC Supp 1960, § 11.1305; SL 1970, ch 248, § 2.<br />
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43-25-24. Conveyances by unincorporated association prior to 1979 validated–Presumption as to legal capacity–Vested rights protected.<br />
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All conveyances of real property, dated, and recorded in the county where the property is situated, by any unincorporated religious, benevolent, fraternal, charitable, or educational association, prior to January 1, 1992, are, notwithstanding the omission of a resolution directing such conveyance, or the giving of notice of the proposed action thereon, by the said association, its trustees, officers, or members, as provided in § 43-25-22, validated, legalized, and cured to the extent that such conveyances shall operate to convey to the persons named as grantees therein, all the right, title, and interest of any of said associations, whether such conveyances purport to have been executed by the members, officers, trustees, agents, or directors thereof; provided, however, that nothing appears of record subsequent to any such conveyances purporting to divest such persons, or their immediate or remote grantees, of such purported interest.<br />
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In order to effectuate the purposes of the foregoing provisions, it shall be conclusively presumed that all such associations had legal capacity to own such real estate and had the legal right to convey the same.<br />
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If any person had any vested right in any real property so conveyed, and no action or proceeding to enforce such right was begun prior to July 1, 1993, such right shall be forever barred; and no action or proceeding so brought shall be of any force or effect or maintainable in any court of this state unless, prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with the provisions of chapter 15-10.<br />
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Source: SL 1959, ch 462; SDC Supp 1960, § 65.0342; SL 1963, ch 463; SL 1969, ch 289; SL 1980, ch 295; SL 1992, ch 307, § 54.<br />
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43-25-25. Grant not invalidated by absence of seal of grantor or his agent.<br />
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The absence of the seal of any grantor or his agent from any grant of an estate in real property heretofore or hereafter made shall not invalidate or in any manner impair the same.<br />
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Source: CivC 1877, § 623; CL 1887, § 3246; RCivC 1903, § 939; RC 1919, § 541; SDC 1939, § 51.1402.<br />
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43-25-26. Recording of grant of estate in real property–Acknowledgment or proof by subscribing witness required.<br />
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The execution of a grant of an estate in real property, other than an estate at will or for a term not exceeding one year, if it is not duly acknowledged, must, to entitle the grant to be recorded, be proved by a subscribing witness, or as otherwise provided in §§ 43-28-8 and 43-28-10.<br />
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Source: CivC 1877, § 623; CL 1887, § 3246; RCivC 1903, § 939; RC 1919, § 541; SDC 1939, § 51.1402.<br />
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43-25-27. Unrecorded instrument showing title to real property–Ownership–Passing with title.<br />
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Instruments essential to the title of real property and which are not kept in a public office as a record pursuant to law, belong to the person in whom, for the time being, such title may be vested, and pass with the title.<br />
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Source: CivC 1877, § 579; CL 1887, § 3202; RCivC 1903, § 895; RC 1919, § 493; SDC 1939, § 51.0811.<br />
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43-25-28. Attornments of tenants unnecessary to grants of rents, reversions, or remainders.<br />
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Grants of rents, or of reversions, or of remainders, are good and effectual without attornments of the tenants, but no tenant, who before notice of the grant shall have paid rent to the grantor, must suffer any damage thereby.<br />
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Source: CivC 1877, § 632; CL 1887, § 3253; RCivC 1903, § 946; RC 1919, § 554; SDC 1939, § 51.1417.<br />
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43-25-29. Title passed by transfer of land bounded by highway.<br />
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A transfer of land bounded by a highway passes the title of the person whose estate is transferred to the soil of the highway in front, to the center thereof, unless a different intent appears from the grant.<br />
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Source: CivC 1877, § 631; CL 1887, § 3252; RCivC 1903, § 945; RC 1919, § 553; SDC 1939, § 51.1412.<br />
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43-25-30. Easements passed by transfer of real property to which they are attached.<br />
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A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred, in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.<br />
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Source: CivC 1877, § 627; CL 1887, § 3248; RCivC 1903, § 941; RC 1919, § 547; SDC 1939, § 51.1413.<br />
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43-25-31. Conveyances by owner for life or for years.<br />
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A grant, made by the owner of an estate for life or years, purporting to transfer a greater estate than he could lawfully transfer, does not work a forfeiture of his estate, but passes to the grantee all the estate which the grantor could lawfully transfer.<br />
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Source: CivC 1877, § 630; CL 1887, § 3251; RCivC 1903, § 944; RC 1919, § 552; SDC 1939, § 51.1411.<br />
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43-25-32. Reservation of power to revoke or modify instrument affecting estate in real property–Subsequent grant revokes original instrument.<br />
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Where a power to revoke or modify an instrument affecting the title to, or the enjoyment of an estate in real property, is reserved to the grantor, or given to any other person, a subsequent grant of or charge upon the estate, by the person having the power of revocation, in favor of a purchaser or encumbrancer, for value, operates as a revocation of the original instrument, to the extent of the power, in favor of such purchaser or encumbrancer.<br />
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Source: CivC 1877, § 678; CL 1887, § 3300; RCivC 1903, § 993; RC 1919, § 599; SDC 1939, § 51.1407.<br />
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43-25-33. Execution of power to revoke or modify instrument affecting estate in real property.<br />
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Where a person having a power of revocation, within the provisions of § 43-25-32, is not entitled to execute it until after the time at which he makes such a grant or charge as is described in § 43-25-32, the power is deemed to be executed as soon as he is entitled to execute it.<br />
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Source: CivC 1877, § 679; CL 1887, § 3301; RCivC 1903, § 994; RC 1919, § 600; SDC 1939, § 51.1407.<br />
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43-25-34. Instrument other than will affecting estate in real property–Effect of fraud.<br />
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Every instrument other than a will, affecting an estate in real property, including every charge upon real property, or upon its rents or profits, made with intent to defraud prior or subsequent purchasers thereof, or encumbrancers thereon, is void as against every purchaser or encumbrancer, for value, of the same property, or the rents or profits thereof.<br />
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Source: CivC 1877, § 676; CL 1887, § 3298; RCivC 1903, § 991; RC 1919, § 597; SDC 1939, § 51.1406.<br />
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43-25-35. Fraud does not avoid instrument affecting estate in real property in favor of subsequent purchaser or encumbrancer with notice–Exception.<br />
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No instrument is to be avoided under § 43-25-34 in favor of a subsequent purchaser or encumbrancer having notice thereof at the time his purchase was made or his lien acquired, unless the person in whose favor the instrument was made was privy to the fraud intended.<br />
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Source: CivC 1877, § 677; CL 1887, § 3299; RCivC 1903, § 992; RC 1919, § 598; SDC 1939, § 51.1406.<br />
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43-25-36. Rights of good faith purchaser or encumbrancer protected against fraud.<br />
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The rights of a purchaser or encumbrancer in good faith and for value are not to be impaired by any of the provisions of §§ 43-25-32 to 43-25-35, inclusive.<br />
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Source: CivC 1877, § 680; CL 1887, § 3302; RCivC 1903, § 995; RC 1919, § 601; SDC 1939, § 51.1408.<br />
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SOUTH DAKOTA CASE LAW<br />
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A court may decline to enforce a forfeiture clause if the defaulting vendee establishes by clear evidence that a substantial disparity exists between the payments made on the contract, together with the improvements made to the property, and the loss of rents and other detriment suffered by the vendors due to the loss of use and possession of the property. Heikkila v. Carver, 378 N.W.2d 214 (1985)<br />
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As regards the vendor’s right to enforce the contract, the time for the delivery of the deed may be made of the essence of the contract, and the time for the payment of the purchase money, if expressly made of the essence of the contract, is so recognized in a court of equity. Id.<br />
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The trial court may order restitution to the defaulting vendee by virtue of its powers to equitably adjust the rights of the party in a foreclosure action. S.D. Codified Laws § 21-50-2. This does not, however, relieve the vendee of his burden of proving that he is so entitled. Id.
