Benjamin v. Savage

• Decision Date: 05 January 1923
• Docket Number: No. 23170.,23170.
• Citation: 191 N.W. 408,154 Minn. 159
• Parties: BENJAMIN et al. v. SAVAGE.
• Court: Minnesota Supreme Court

154 Minn. 159

191 N.W. 408

BENJAMIN et al.

v.SAVAGE.

No. 23170.

Supreme Court of Minnesota.

Jan. 5, 1923.

Appeal from District Court, Hennepin County; E. A. Montgomery, Judge.

Action by Dora V. Benjamin and another against Andrew Savage. Verdict for plaintiffs, and from an order denying defendant's alternative motion for a judgment or new trial, he appeals. Order affirmed.

Syllabus by the Court

A contract for the sale of land provided for a cash payment, and subsequent half-yearly installments, extending over several years, conveyance to be made when payment in full was made. Possession was delivered to the vendee. He became the equitable owner, the legal title remaining in the vendor as security for the deferred payments. The covenant to pay the installments of the purchase price, except the last one, and the covenant to convey, were independent, and an action at law could be maintained to recover an installment. The vendor was not relegated to an action for damages for the breach of the contract or for specific performance.

The registration tax was not paid and the contract was not recorded. It was not admissible in evidence. It is held that the vendor might pay the tax while the trial of the action was in progress, though the vendee objected, and that the contract was then admissible in evidence and a recovery could be had thereon.

The defendant claims a defect in the title because of a discrepancy between the name of a grantee in a deed and the name of the grantor in a subsequent deed. The two deeds have been of record for more than 50 years and no adverse title based on the discrepancy has been asserted. His earnest money contract provided for an abstract showing good title and a contract of sale. An abstract was furnished and the contract of sale involved here was delivered to him and accepted and he took and now maintains possession. When sued for an installment he cannot now object to the title, and in any event his claim of a defective title is not substantial. Jay W. Crane, of Minneapolis, for appellant.

L. L. Swarthe and Felix Moses, both of Minneapolis, for respondents.

DIBELL, J.

Action at law to recover the first installment due on a contract for the purchase of land. A verdict was directed for the plaintiffs. The defendant appeals from an order denying his alternative motion for judgment or a new trial.

[1] 1. On April 6, 1921, the plaintiffs entered into a contract with the defendant whereby they sold and agreed to convey a lot in Minneapolis for $8,250, of which $1,000 was paid in cash, $500 was to be paid on October 6, 1921, and 500 each six months thereafter until the entire purchase price was paid, together with interest on deferred payments. The defendant was given possession. He became the equitable owner. The legal title remained in the plaintiffs as security for the deferred payments. The plaintiffs were given the right to terminate the contract, as provided by the statute, that is, on 30 days' notice. The action is to recover the $500 due on October 26, 1921.

It is the contention of the defendant that the contract to give a deed and to pay the agreed installments were dependent, and that there could be no recovery of the installments in an action at law, the plaintiffs' remedy being an action for damages for the breach or an action for specific performance. He relies upon Freeman v. Paulson, 107 Minn. 64, 119 N. W. 651,131 Am. St. Rep. 438, and other cases. See Dunnell's Minn. Dig. § 10084. The plaintiffs claim that the covenants to pay, unless it be the covenant to pay the last installment, are independent of the covenant to make a deed, and that recovery can be had for each installment as it matures. This is the correct view. Where there are numerous installments, and the deed is to be given when the last one is paid, the covenant to pay installments, except the last one, and the covenant to convey, are independant. Loveridge v. Coles, 72 Minn. 57, 74 N. W. 1109;Lindstrom v. Helk, 139 Minn. 100, 165 N. W. 873;Noyes v. Brown, 142 Minn. 211, 171 N. W. 803. The situation shows such to be the intention.

[2] 2. The registration tax had not been paid upon the contract when the trial commenced. Objection was made to its introduction in evidence. The plaintiffs paid...