Archambau v. Green

• Court: Minnesota Supreme Court
• Writing for the Court: Berry
• Citation: Archambau v. Green, 21 Minn. 520 (Minn. 1875)
• Decision Date: 14 May 1875
• Parties: GEORGE ARCHAMBAU <I>vs.</I> GEORGE GREEN.

21 Minn. 520

GEORGE ARCHAMBAU vs. GEORGE GREEN.

Supreme Court of Minnesota.

May 14, 1875.

Complaint that on July 18, 1857, plaintiff was owner in fee of the east half of the northeast quarter and the east half of the southeast quarter of section 20, in township 119, range 23, in Hennepin county; that on that day the plaintiff, to secure the payment of $165, executed and delivered to William K. Mehaffey and Bernard U. S. Black a mortgage upon all of said property, which was duly recorded, etc. That on June 13, 1867, plaintiff bargained and sold to the defendant the west half of the east half of the northeast quarter, and the west half of the east half of the southeast quarter of said section 20, and for the purpose of securing defendant against said mortgage, and to save him harmless therefrom, and not otherwise, the plaintiff included in his deed to defendant the whole of said 160 acres of land first above described, upon the condition, and with the express understanding and agreement, that the defendant should reconvey to the plaintiff the east half of the east half of the northeast quarter, and the east half of the east half of the southeast quarter of said section 20, as hereinafter more particularly mentioned; which said last-described deed was duly recorded, etc.; and that the title to all of the

said 160 acres of land is in the name of the defendant, as appears by the records of said Hennepin county. That on said June 13, 1867, for the purpose of consummating the sale of said described 80 acres of land to the defendant, as before stated, and of carrying out and completing said agreement, the defendant executed and delivered to plaintiff a bond bearing date on the day and year last aforesaid, in the penal sum of $500, whereby and wherein the defendant did covenant and agree that if the plaintiff should, within two years from said date, pay said described mortgage, or cause said mortgage to be discharged of record, and pay all taxes then due on said premises, the defendant would, by a good and sufficient deed, reconvey to the plaintiff said east half of the east half of the northeast quarter, and the east half of the east half of the southeast quarter of section 20 aforesaid; which said bond was duly recorded, etc.

That the plaintiff paid all the taxes due on said premises within two years after the execution of said bond, in accordance with the terms and conditions thereof. That more than ten years have elapsed since the debt secured by said mortgage became due and payable, and that no proceedings at law, or otherwise, have ever been instituted to foreclose said mortgage, or to collect the debt thereby secured; and that long before the commencement of this action said mortgage, and the debt thereby secured, became and still are barred by the laws of this state; and that said mortgage long since ceased to be a lien upon said premises, or any part thereof; and that long before the commencement of this action the said mortgage was, ever since has been, and still is, void and of no force and validity.

That before the commencement of this action, the plaintiff demanded of the defendant a reconveyance of the east half of the east half of the northeast quarter, and the east half of the east half of the southeast quarter of said section 20; but that defendant then refused, and ever since has refused and neglected, and still refuses and neglects to convey to the plaintiff the said property, or any part thereof, on the

ground and for the sole reason that the plaintiff had not paid off said mortgage, although the same was void and of no effect.

The demand of judgment is that the title in fee of and to the east half of the east half of the northeast quarter, and the east half of the east half of the southeast quarter, in section 20, etc., may be adjudged to be in the plaintiff, and that defendant be barred from claiming any interest in or title to said premises, or any part thereof, and for general relief.

A general demurrer to this complaint was sustained by the district court for Hennepin county, Vanderburgh, J., presiding, and the plaintiff appealed.

Atwater & Babcock, for appellant.

Lochren, McNair & Gilfillan, for respondent.

BERRY, J.

As respects the east half of the east half of the northeast quarter, and the east half of the east half of...