(dissenting).
I would affirm the judgment of the trial court.
As I read the majority opinion, this court would require specific performance of a contract, the particulars of which are nebulously set forth in testimony relating to telephone conversations and in correspondence between the plaintiff and her attorney and between the attorney and the defendant and his lender and not aided by SDCL 43-26. The attorney, as agent for the plaintiff, clearly violated his trust and exceeded his authority as found by the trial court * amounting to fraud on his principal, SDCL 59-3-8. These findings were clearly supported by the evidence, SDCL 15-6-52(a), and the agent’s acts are not binding on the plaintiff under these circumstances. SDCL 59-6-9, 59-6-10.
I believe the trial court quite properly construed the complaint of the plaintiff as an action to quiet title pursuant to SDCL 21-41 where lis pendens was filed pursuant to SDCL 21-41-12. While the summons may not have been in the language suggested by SDCL 21-41-7, the statute is directory, not mandatory, and is not consistent with subsequently adopted rules of this court as set forth in SDCL 15-6-4(a) and SDCL 15-6-8(a) through 15-6-8(f). The majority opinion implies that SDCL 21-50 is an exclusive remedy of the plaintiff. That implication is not supported under prior decisions of this court nor by the statutes. Certainly it would have been proper for plaintiff to proceed under SDCL 21-50-1 and 21-50-2; however, these laws provide *486not an exclusive but rather a cumulative remedy to a vendor to enforce a lien .declared to exist by virtue of SDCL 44-6-1. Sorum v. Sorenson, 1922, 45 S.D. 313, 187 N.W. 423. Plaintiff was not required to proceed on that theory and quite properly did not do so, SDCL 21-50-7, but sought recovery of the land. Sweet v. Purinton, 1918, 40 S.D. 17, 166 N.W. 161. The claim of the plaintiff is, essentially, that there had been a substantial breach, of contract by the defendant authorizing rescission. SDCL21-12-1, 53-11-2; Dusek v. Reese, 1963, 80 S.D. 96, 119 N.W.2d 656. For plaintiff to have proceeded under SDCL 21-50-1 would have required her to treat the contract as in full force and effect and thus deny her the claimed forfeiture. Hickman v. Long, 1914, 34 S.D. 639, 150 N.W. 298.
Defendant, on the other hand, relied solely on the premise that the contract had been fully executed and did not seek specific performance under SDCL 21-9. Ford v. Hofer, 1961, 79 S.D. 257, 111 N.W.2d 214. To reverse the trial court on this record and state a cause of action for the defendant which was not pleaded is unwarranted.
Among the significant findings of the trial court, the following highlight the agent’s fraud:
“(10) That on the 17th day of November, 1967, Milton Cameron without any authority from the plaintiff executed an option by the terms of which the defendant, Aldon Skoglund, was given sixty (60) days within which to complete the purchase and payments on the land in question.”
“(17) That Milton Cameron delivering the warranty deed of the land in question to the defendants was contrary to the specific instructions of the plaintiff and without any authority by the plaintiff.”