Speck v. First National Bank of Sioux Falls
Cases that cite this one
12 later published cases cite this decision.
- In re Faiman (United States Bankruptcy Court, D. North Dakota 1987)
- Matter of Scanlan (United States Bankruptcy Court, S.D. Iowa 1987)
- Larsen v. Metropolitan Life Insurance (In re Larsen) (United States Bankruptcy Court, D. South Dakota 1990)
- Heartline Farms, Inc. v. Daly (United States District Court, Nebraska 1990)
- Lindermuth v. Myers (District Court, D. South Dakota 1988)
- In re Coffman (United States Bankruptcy Court, S.D. Indiana 1988)
- In re Buchert (United States Bankruptcy Court, N.D. Illinois 1987)
- In re Howe (United States Bankruptcy Court, D. South Dakota 1987)
- No. 85-5403 (8th Cir. 1986)
- In re Bertelsen (United States Bankruptcy Court, C.D. Illinois 1986)
- In re Carver (United States Bankruptcy Court, D. South Dakota 1986)
- Speck v. First National Bank (8th Cir. 1986)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion
ORDER
Debtors have appealed from an order of the bankruptcy court, dated July 3, 1985, 50 B.R. 307, which held that the debtors’ contract for sale of land with First National Bank is an executory contract and must be assumed or rejected under § 365 of the Bankruptcy Code. 11 U.S.C. § 365 (1982). The parties agree that the question of whether a contract for deed is an executory contract or security agreement is governed by state law. See Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979); In re Britton, 43 B.R. 605 (Bankr.E.D.Mich. 1984). An executory contract is one in which a failure to perform by either party would “constitute a material breach, excusing performance of the other.” In re Knutson, 563 F.2d 916 (8th Cir. 1977) quoting Countryman, Executory Contracts in Bankruptcy: Part I 57 Minn.L.Rev. 439, 460 (1973). In South Dakota, the right of the vendor to receive payment and the right of the vendee to take merchantable title upon completion of those payments are dependent covenants. Walsh v. Bellamy, 68 S.D. 291, 294, 2 N.W.2d 102, 103 (1942). Failure of either party to perform is a material breach ex *62 cusing the other’s performance under South Dakota law. Therefore, a contract for the sale of land is an executory contract.
For the reasons stated above, it is
ORDERED that the bankruptcy court’s order of July 3, 1985, ruling that debtors’ contract for sale of land is an executory contract, is in all respects AFFIRMED.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.