Buswell v. O.W. Kerr Co.
| Citation | 128 N.W. 459,112 Minn. 388 |
| Decision Date | 18 November 1910 |
| Docket Number | 16,707 - (22) |
| Parties | LEWIS BUSWELL and Another v. O.W. KERR COMPANY |
| Court | Supreme Court of Minnesota (US) |
Action in the district court for Hennepin county to recover $1,934.40 paid by plaintiffs to defendant upon a contract to sell certain land to plaintiffs. The contract is given in the opinion. The complaint, inter alia, alleged that defendant was a foreign corporation in Wisconsin and had not procured the statutory license to do business in that state; that under the decisions of the supreme court of that state the making of such contract constituted transacting business, and such contract made before compliance with the Wisconsin statutes is nonenforceable by such corporations but enforceable against them. The answer admitted the execution of the contract, but denied that defendant was to furnish plaintiffs an abstract of defendant's title to the property mentioned; alleged that the abstract disclosed a good and perfect title to the land; admitted that defendant was not licensed or authorized to carry on business within the boundaries of the state of Wisconsin; denied that by reason of defendant's failure to comply with the Wisconsin statutes and to procure a license to transact business within that state, the contract was wholly void, and alleged that the contract did not affect the personal liability of defendant and did not relate to property within the state of Wisconsin. The reply was a general denial.
The case was tried before John Day Smith, J., who made findings of fact as stated in the opinion, and in addition found that by reason of not having a license to enter into a contract affecting its personal liability, or to transact business in Wisconsin, the contract in question was absolutely void, and as conclusion of law found that plaintiffs were entitled to judgment in their favor for the sum demanded. From an order denying defendant's motion for a new trial, it appealed. Affirmed.
Sale of land -- construction of contract.
The contract involved in this action required the vendor to furnish to the vendee, within a reasonable time, an abstract of title which should show upon its face that the vendor possessed a good title of record.
Sale of land -- abstract of title -- conveyance from third person.
Where a vendor is under contract to execute and deliver a deed with covenants of warranty, the vendee is not bound to accept the deed of a third party, although the real owner. The abstract furnished by the vendor, pursuant to the agreement, was not in compliance with the contract, for the reason that the land was incumbered with certain vendors' liens and showed upon its face that a third party was possessed of the record title.
Defect in title -- notice was within reasonable time.
Appellant was notified, within a reasonable time, that respondents objected to the title, conceding that such notice was required under the terms of the contract.
Marketable title -- attorney's opinion.
In general, the opinion of an attorney will not be received in evidence upon the question whether a certain title is or is not marketable; but, when it appears that all of the facts upon which the opinion was based are before the court, the admission of the opinion is not necessarily prejudicial error.
Koon Whelan & Hempstead, for appellant.
Brown Abbott & Somsen and Jesse E. Higbee, for respondents.
Respondents brought this action to recover the amount of the first payment made under a contract for the purchase of certain real estate, upon the ground that appellant had failed to furnish an abstract showing good title in appellant. The land was situated in the state of Texas. Respondents were residents of the state of Wisconsin, and appellant was a corporation organized under the laws of the state of Minnesota, doing business in the city of Minneapolis, Minnesota. The contract was executed in Wisconsin on March 30, 1908, and is as follows:
The trial court found that on April 10, 1908, appellant delivered to respondents, in the state of Wisconsin, certain papers which it then and there represented to be an abstract showing title in appellant; that the abstract so delivered wholly failed to disclose any title to the land in appellant company, and did disclose that there were existing and outstanding liens against the land; that upon receipt of the abstract respondents caused an examination thereof to be made by competent attorneys, and were informed that the title as disclosed by the abstract was not a good and sufficient or marketable title, and that it did not disclose any title in appellant company; that respondents completed examination of the abstract within a reasonable time after it was delivered to them, and within reasonable time notified appellant of the fact that it had to title, as disclosed by the abstract; that on June 15, 1908, respondents notified appellant that by reason of its failure to furnish an abstract disclosing a good and sufficient marketable title in itself to the real estate they rescinded the contract and demanded a return of the sum of $1,934.40, with interest, which demand was refused. The court further found that respondents acted in good faith in relying on the advice of competent legal counsel, and in rejecting the title, and held that respondents were entitled to recover.
Being satisfied that the decision of the trial court must be affirmed, upon the ground that the abstract did not show a record title in appellant, and that respondents had the right to rescind on that ground, we deem it unnecessary to consider the other questions submitted at the reargument.
Upon execution of the contract respondents executed and delivered to appellant a promissory note of $1,920, with interest at six per cent., due forty-five days from date, and the note given for the first payment of the purchase money was assigned to innocent purchasers and paid at maturity by respondents. They agreed to pay the further sum of $5,760, as follows: $1,920 six months from the date of the contract, and $768 annually for five years, with interest at six per cent., notes to be given for these amounts. If the note due in six months should be paid within ninety days, then the price should be reduced fifty cents per acre; the deed to be delivered upon completion of the payments. As the contract is printed in the record it reads: "Abstract to be furnished, to be secured by a contract on the property above described." From an examination of the original contract, the clause "abstract to be furnished" stands independently, and the rest of the above quotation has reference to the notes to be given for the purchase price.
The questions are:
1. Did the contract provide that appellant was to furnish an abstract showing a good title of record in appellant?
2. Did the abstract show a good title of record in appellant...
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