Alworth v. Seymour

• Decision Date: 14 February 1890
• Citation: 44 N.W. 1030,42 Minn. 526
• Parties: Marshall H. Alworth v. Jemima Seymour
• Court: Minnesota Supreme Court

44 N.W. 1030

42 Minn. 526

Marshall H. Alworth v. Jemima Seymour

Supreme Court of Minnesota

February 14, 1890

Appeal by defendant from an order of the district court for St Louis county, Ensign, J., presiding, overruling her demurrer to the complaint, the averments of which are in substance as follows: Defendant, who lives in Ontario, Canada, is the widow of one Patrick Seymour, late of Brainerd, in this state, who, while residing in this state, was known as Francis Seymour, and who died January 8, 1888, intestate, and seised of certain described lands in Brainerd and in Duluth and possessed of at least $ 3,000 in personal property. These lands were on April 12, 1889, and ever since have been, in possession of other persons claiming to own them, and defendant has never had the means wherewith to establish her title. Until June, 1889, the defendant had no knowledge nor any means of discovering the property left by her husband. Plaintiff's business is the making of abstracts of lands in St. Louis county, and examining and perfecting defective titles. On April 12, 1889, plaintiff, by letter, offered to defendant "to do all the work of looking up the property in which defendant has an interest, and settling it up, pay all expenses connected therewith, for defendant, without charge to her unless plaintiff should succeed therein; and in case of success, defendant should divide the property or money obtained equally with plaintiff, first deducting from the gross proceeds the necessary expenses and disbursements of plaintiff therein." This offer the defendant accepted by letter, and the plaintiff thereupon entered on the work of discovering the property in which defendant has an interest and retained attorneys to prosecute the litigation necessary to recover it. This work he has diligently pursued, and has performed services worth $ 100, and become liable to attorneys for $ 100 more, but the defendant now refuses to execute and deliver to him any power of attorney or other paper necessary for the further prosecution of his work under the agreement, which she has repudiated, and has given to another person a power of attorney to convey by warranty deed all her interests in Minnesota lands, which power has been recorded in St. Louis county. Defendant's interest in her husband's lands is worth $ 25,000; no part of it can be recovered except by litigation; defendant is wholly without means except such interest, and no part of the value of plaintiff's services or of the debt incurred by him has been paid. The prayer for judgment is that defendant be required to specifically perform the agreement; that she be enjoined from parting with any of her interest in her late husband's lands until plaintiff's expenses have been paid out of the property, and one-half the remainder of the property has been conveyed to him; and that his necessary disbursements and expenses be adjudged a lien on all defendant's interest in the lands.

Order affirmed.

True & Wetherby, for appellant.

Draper & Davis, for respondent.

OPINION

Mitchell, J.

The complaint in this action was evidently framed with reference to compelling specific performance of the contract declared on. The point urged by defendant in support of her demurrer is that the contract is champertous.

1. It is not necessary to determine here whether or not the common law as to champerty is in force in this state, because there are at least two reasons why plaintiff cannot have specific performance in this case: (1) The contract did not create a power "coupled with an interest," but a mere naked agency, by which defendant employed plaintiff as her agent to perform certain services, as compensation for which he was to receive a share of the results of the execution of the agency. It is not enough to constitute a "power coupled with an interest" that plaintiff was to have an interest in the proceeds...