(concurring).
It is important to recognize that this case was a consolidated action of two civil files in Jerauld County, civil files no. 83-16 (a file opened in 1983) and 90-18 (a file opened in 1990). The first is a divorce action and the second is an action of specific performance of an Agreement. The Agreement arises from an adjudication of non-executing provisions in the Decree of Divorce. I would, in all matters, affirm the trial court.
The Agreement was dated April 24, 1990.* Sheffield wants to repudiate the Agreement. Not once does his brief mention that on May 15, 1990, he received $27,727.07 from Thomas. This was partial performance on her part. Sheffield received the benefit of his bargain. On June 21, 1990, Sheffield not only repudiated the Agreement but failed to perform. To this day, he has failed to tender return of the payment and has retained the money for his own use. He cannot have his cake and eat it, too.
Justice Wuest, writing for this Court in Sjomeling v. Sjomeling, 472 N.W.2d 487, 490 (S.D.1991) (Henderson, J., concurring in part, dissenting in part on a different issue), citing 24 Am.Jur.2d, Divorce and Separations, § 959, expressed: “And as a general rule, courts retain jurisdiction to make such further orders as are appropriate to compel compliance with its judgment.”
Judge McMurchie, acting as the trial court, approved this Agreement deeming it was appropriate to compel the parties to comply with the Decree of Divorce because certain provisions were not self-executing. Why were these provisions not self-executing? A major marital asset consisted of real property while the general economy (particularly farming) was in a down state. Litigants and attorneys bargained to keep the corpus alive hoping that a liquid estate would exist to later divide. It was successful.
Attempting to implement the “non-executing” provisions, there were court hearings and accounting. As a result, the now warring parties arrived at an agreement. It should be upheld based on the performance *845of Thomas and by Sheffield adopting the Agreement when he obtains $27,727.07 thereunder. A restoration of status quo, as a requirement for rescission, is based upon essentially equitable nature of rescission. Holcomb v. Zinke, 365 N.W.2d 507 (N.D.1985). One must restore, after promptly rescinding, the value received to the other party. Check Control, Inc. v. Shepherd, 462 N.W.2d 644 (N.D.1990). A party seeking equity must do equity. Where one party seeks to be discharged from a contract, he must restore or offer to restore to the other party the benefits received by him under it, to entitle him to relief. Lovell v. McCaughey, 8 S.D. 471, 66 N.W. 1085 (1896). ’Twas true in 1896 and it is still true today. Old but gold.
A decree of divorce was entered concerning these parties on August 19, 1984. Certain issues, by agreement, were reserved relating to the future disposition of property and operation of farm property.