Coolbaugh v. Roemer

• Decision Date: 29 November 1884
• Citation: 32 Minn. 445
• Parties: ELLEN T. COOLBAUGH <I>vs.</I> ELIZA J. ROEMER.
• Court: Minnesota Supreme Court

32 Minn. 445

ELLEN T. COOLBAUGHvs.

ELIZA J. ROEMER.

Supreme Court of Minnesota.

November 29, 1884.

Ejectment for a parcel of land in Minneapolis, consisting of contiguous parts of lots 4 and 5, in block 55, and being in area less than either lot. After the decision of the former appeal (30 Minn. 424) the defendant amended her answer, the amended answer being, in substance, as follows: That on June 23, 1875, one Matilda Smith was owner in fee of the premises and on that day executed to defendant a bond for a deed thereof, and on the same day the bond was recorded, and defendant went into possession under it, and has ever since been in possession. That on August 28, 1879, Smith conveyed in fee to defendant, by warranty deed recorded on the same day. That plaintiff claims title under an execution sale, made November 29, 1879, on a judgment of one Hilliker against Smith. The answer goes on to describe the two parts of the tract, on each of which was a separate dwelling house, alleging that the parts were separated by the distinct and known dividing line between lots 4 and 5, that at the execution sale they were sold together as one parcel, for $177.53, to the judgment creditor, who received and recorded the sheriff's certificate.

For a second defence, the defendant repeats the averments in her first defence as to the making and record of a bond for a deed to her by Smith, and her entry thereunder, on June 23, 1875, and further alleges payments on the bond by which the amount due thereon had been reduced to $4,203, on August 28, 1879, on which day Smith conveyed the premises to her in fee by warranty deed, and she gave back a mortgage to secure $4,203, both deed and mortgage being recorded on that day. That defendant made payments on the mortgage until November 8, 1879, on which day Smith acknowledged full payment and satisfaction, and discharged the mortgage of record, in consideration of defendant's agreement to support Smith during life, and the payments already made. That prior to the execution sale the defendant had no notice of the Hilliker judgment.

The prayer for judgment is (1) that the execution sale be declared inequitable, and, with the sheriff's certificate thereof, set aside, and defendant adjudged to be owner in fee of the premises; and if this relief is refused, then (2) that plaintiff be required to convey to defendant, on the ground that defendant has fully performed all the conditions of the bond for a deed, or upon payment by defendant of such sum as shall be found by the court to be due, as between defendant and plaintiff, on the bond for a deed; and (3) for general relief.

In her reply the plaintiff denies that defendant went into possession at the time of the execution of the bond for a deed, or that she was ever in possession until after the docketing of the Hilliker judgment; alleges that the bond was upon the expressed condition that defendant should pay for the premises $7,400, in five years from its date, with interest at 10 per cent. per annum, and that the bond was made without consideration and to defraud Hilliker and the other creditors of Smith. That plaintiff derives her title under the execution sale on the Hilliker judgment, and that for many years before that sale, and ever since, the premises have been, and have been treated as, one tract of land. The reply also denies defendant's alleged ignorance of the Hilliker judgment; alleges that she had full knowledge of it soon after it was rendered as well as when the deed and mortgage of August 28, 1879, were made; contains a general denial of each and every allegation of the answer not herein admitted, and pleads, as an estoppel, the judgment rendered May 26, 1880, in the same court, in a suit between defendant and Hilliker, begun January 12, 1880, whereby it was adjudged that the execution sale was valid, that Hilliker had thereby acquired all the title of Smith at the date of the docketing of the judgment, and that at the date of the deed from Smith to defendant (August 28, 1879,) the defendant had paid upon the bond but $1,500.

The action was tried by Young, J., without a jury, and the appeal is from an order refusing a new trial. The record contains no settled case or bill of exceptions, but it is stated in the judge's findings that on the call of the cause for trial the plaintiff demanded a jury trial, which was denied on the ground that at a former term a jury trial had been waived, and that the issues made by the amended answer and reply made the action an equitable one, triable by the court. The findings of fact were in substance that on June 23, 1875, Matilda Smith, the defendant's mother, owned the property, (which constituted but one parcel or tract of land, having upon it two houses, occupied by tenants,) and on that day made to defendant her bond, agreeing to convey the property to defendant upon payment of $7,400, on or before five years from that date, with interest at 10 per cent. per annum, according to two notes of $3,700 each; that no actual change of possession took place, but the tenants were notified to pay rent to defendant; that Smith, however, continued to collect the rent and applied it on defendant's notes; that on April 15, 1878, and September 9, 1878, J. A. Hilliker recovered and docketed judgments in Hennepin county against Smith, the first for $136.77, and the second for $140.11; and the property was, on November 29, 1879, bought by Hilliker for $177.53 at execution sale on the first of his judgments; that on December 2, 1880, one Hael, the assignee of a judgment for $285,...