Clark v. Butts

• Decision Date: 15 July 1898
• Citation: 76 N.W. 199,73 Minn. 361
• Parties: CLARK v BUTTS ET AL.
• Court: Minnesota Supreme Court

73 Minn. 361

76 N.W. 199

CLARKvBUTTS ET AL.

Supreme Court of Minnesota.

July 15, 1898.

(Syllabus by the Court.)

1. As between the immediate parties, a deed executed with the name of the grantee left in blank is of no force or effect.

2. The parties to whom said deed was delivered held, against the grantor therein, a note for $200, which they then surrendered, but it was at the same time agreed that they should be allowed to commence an action against her for the amount of the note, and obtain judgment therein. Held, under these circumstances, the note was only surrendered up in form, and still furnished a basis for the action so brought upon it.

3. In an action in the municipal court of St. Paul, the judgment roll was made up, and a transcript of the judgment as entered in the roll taken from that court and filed and docketed in the district court of Ramsey county, before any judgment was entered in the judgment book in the municipal court. Held, the judgment or copy thereof in the judgment roll became thereby the judgment of the municipal court; it is valid, though irregular; and the transcript of it filed in the district court is also valid. Rockwood v. Davenport, 35 N. W. 377, 37 Minn. 533, overruled.

4. Where the purchaser at a foreclosure sale accepted from the sheriff the money paid him by a judgment creditor to redeem the property, held such purchaser thereby waived a defect in the notice of redemption filed by the creditor, and waived also the failure of the creditor to present to the sheriff an affidavit of the amount due on the judgment, and could not recall such waiver by returning the redemption money to the sheriff seven or eight days after he received it.

Appeal from district court, Ramsey county; Olin B. Lewis, Judge.

Action by Adoniram Clark against Charles Butts, Mary Browning, and another to determine adverse claims to land. Finding for plaintiff, new trial denied, and defendant Browning appeals. Reversed.

Walter L. Chapin, for appellant.

How & Butler, Stiles W. Burr, and Chas. Butts, for respondent.

CANTY, J.

On May 8, 1890, one Waterman and one George were the owners of a certain outlot in the city of St. Paul. On that day they mortgaged it to plaintiff to secure the payment to him of the sum of $3,500. Thereafter the interest of Waterman was, through mesne conveyance, transferred to his wife, Elizabeth J. Waterman. Thereafter, default having been made in the payment of an installment of interest due on the mortgage indebtedness, plaintiff duly commenced proceedings to foreclose the mortage under the power of sale therein contained, and pursuant thereto the lot was sold on April 19, 1892, at the foreclosure sale, to one Wilmot, for the sum of $232.15, the same being the amount of such installment of interest and the costs of the foreclosure proceedings. The year to redeem expired, and no redemption was made by the owner. On April 19, 1893, the last day of the year, the defendants Butts & Jaques filed a notice of intention to redeem as judgment creditors under a judgment in their favor, and against Mrs. Waterman, claimed to have been docketed in the district court of Ramsey county on September 30, 1892, for the sum of $214. On April 21, 1893, Butts & Jaques paid to the sheriff the amount necessary to redeem as such creditors from the foreclosure sale, and received from him a certificate of redemption. On the next day Wilmot received from the sheriff the redemption money so paid to him by Butts & Jaques. Plaintiff claims that the alleged judgment of Butts & Jaques, and the alleged redemption under it, are both fraudulent and void for various reasons, and that before Wilmot received the redemption money from the sheriff he assigned the sheriff's certificate of foreclosure sale to one Wheeler, who thereafter assigned it to plaintiff. This is an action to determine adverse claims. On the trial the court below found for plaintiff, an appeal from an order denying a new trial is taken by the defendant Browning, who claims under Butts & Jaques.

The trial court found that Wilmot did not receive the redemption money from the sheriff until after he (Wilmot) had executed and delivered to Wheeler the assignment of the sheriff's certificate of foreclosure sale. Appellant contends that this finding is not supported by the evidence, but that, on the contrary, it conclusively appears from the evidence that Wilmot accepted the redemption money before he delivered the assignment to Wheeler. In our opinion, the point is well taken. Wheeler & Howell, real-estate agents, were acting for plaintiff in an attempt to procure for him the rights obtained by Wilmot under the foreclosure sale. A form of assignment of the sheriff's certificate from Wilmot to Wheeler was drawn up by Howell, and he and Wilmot met at the office of the attorney of the latter on April 22, 1893. Wilmot signed the assignment and acknowledged it before his attorney, who was a notary public. Then he left the assignment in the hands of his attorney, and went away to ascertain the amount to be paid by Wheeler for the assignment; it being orally agreed that Wheeler should pay the amount bid at the sale, and interest for this and another assignment, and also $50 “bonus,” and Howell, acting for Wheeler, was then and there ready to pay the amounts. Instead of returning, Wilmot, on the same day, went to the sheriff's office, and drew out the redemption money paid in by Butts & Jaques. Wheeler did not pay anything for the assignment, and the assignment was not delivered until after Wilmot had drawn out the redemption money. This is conclusively established by the evidence. By a subsequent arrangement made between Wheeler and Wilmot, the money was returned to the sheriff on May 1, 1893, and on that day, or a day or two before, the assignment of the sheriff's certificate of this lot was delivered to Howell for Wheeler. The attempted purchase of the sheriff's certificate was a cash transaction. It is...