Byers v. Orensstein

• Decision Date: 18 January 1890
• Citation: 44 N.W. 129,42 Minn. 386
• Parties: BYERS ET AL. v ORENSSTEIN ET AL.
• Court: Minnesota Supreme Court

42 Minn. 386

44 N.W. 129

BYERS ET AL.vORENSSTEIN ET AL.

Supreme Court of Minnesota.

Jan. 18, 1890.

(Syllabus by the Court.)

1. The record of a contract to convey real estate, there being nothing of record to show that it had been enforced or performed, or the right to enforce it extended, ceases to be notice of the vendee's rights under it, or of anything done pursuant to it, when, according to the record, the statute of limitations has barred the right to enforce it; and any one seeing the record may in such case assume that the contract was abandoned by the parties interested in it.

2. The party putting interrogatories or cross-interrogatories for the deposition of a witness pursuant to stipulation may decline to read any of them and the answers, but, if he do, the other party may read them.

3. Error held to be without prejudice.

Appeal from district court, Ramsey county; BRILL, Judge.

S. & O. Kipp, for appellants.

Fr. F. Wilde and Henry B. Farwell, for respondents.

GILFILLAN, C. J.

November 5, 1856, one Dunwell, being then the owner of an undivided half of lots 10, 11, and l2, in block 13, of the town of Brooklynd, in Dakota county, executed a bond to convey the lots (not merely the undivided half) to John H. Byers, upon being paid the sum of $525, with interest, according to the conditions of two promissory notes, (when they were to become due does not appear,) and upon the vendee making improvements on the lots within one year from that date to the amount of $800. The bond was recorded January 9, 1857. Byers and wife, on February 3, 1857, executed to one Pollock a quitclaim deed of the lots, which was recorded the same day, and April 9, 1859, Pollock and wife executed to Virginia Byers, the wife of John H., a quitclaim deed of the lots, which was recorded April 23, 1859. September 3, 1860, Dunwell and wife executed to Virginia Byers a deed of lots 11 and 12, which deed was never recorded. The improvements mentioned in the bond were never made on the lots, nor does it appear that Byers or his wife ever went into possession. May 2, 1881, Dunwell and wife executed to John B. Spencer, the owner of the other undivided half of the lots, a power of attorney authorizing him in the fullest terms to convey real estate, which was recorded February 23, 1882. November 17, 1884, Spencer and wife on their own behalf, and Spencer on behalf of and as attorney in fact for Dunwell and wife, executed to one Fantle a warranty deed of lot 11, which was recorded the same day, and on the same day Fantle and wife executed to defendant a warranty deed of that lot, which deed was also duly recorded, and defendant immediately went into possession and built on the lot, and is now in possession. Defendant was a bona fide purchaser, and entitled to the protection of the registry laws, unless the record of the bond and of the quitclaim deed to Pollock, and by Pollcok to Virginia Byers, were constructive notice of the unrecorded deed by Dunwell and wife to her. The action is in...