Cullen v. Dawson

• Decision Date: 11 August 1877
• Citation: 24 Minn. 66
• Parties: ORLAN O. CULLEN and another <I>vs.</I> WILLIAM DAWSON and others.
• Court: Minnesota Supreme Court

24 Minn. 66

ORLAN O. CULLEN and another vs. WILLIAM DAWSON and others.

Supreme Court of Minnesota.

August 11, 1877.

This was an appeal by plaintiffs from an order of the district court for Ramsey county, Simons, J., presiding, denying a motion for a new trial.

Geo. L. & C. E. Otis, for appellants.

Smith & Egan and R. J. Reid and Samuel Hardwick, for respondents.

BERRY, J.

This is an interpleader action commenced by the plaintiffs on March 25, 1876.

In the complaint the plaintiffs set out an agreement, (hereinafter recited,) executed and delivered by them to Lyman C. Dayton, admit the receipt of the money therein referred to, and allege their willingness to pay the sum mentioned in the agreement as soon as it can be determined who is rightfully entitled to the same. The complaint further alleges that defendants Dawson & Co. claim to be the owners and holders of the agreement, and have commenced an action to recover the money mentioned therein; that Simonton, as assignee in bankruptcy of Dayton, also claims the money due on the agreement; that the plaintiffs are ignorant which is entitled to the money, and are ready to bring the same into court, etc. As relief, the complaint, among other things, asks that the action brought by Dawson & Co. may be enjoined, and that plaintiffs, on bringing the money into court, may be discharged from all liability to either of the defendants. The money in controversy was paid into court by the plaintiffs, and an injunction issued.

Defendants Dawson & Co. answered, alleging a purchase of the agreement by them of Dayton, for value paid, and that, when Dayton offered to sell it to them, the plaintiffs, to induce them to purchase, represented that the agreement belonged to Dayton, and that if they (Dawson & Co.) purchased the same, plaintiffs would pay to them the sum mentioned therein. The answer further alleged that Dawson & Co. purchased the agreement upon the strength of these representations, and that they were still owners and holders of the agreement, and entitled to receive the money due thereon. Plaintiffs replied to the answer, denying the alleged representations. The defendant Simonton also answered, setting up the facts upon which he claimed title to the agreement, and to the moneys due thereon, as Dayton's assignee in bankruptcy.

Upon the issues thus raised the case was tried by the district court, by which facts were found as follows: On August 8, 1854, Charles R. Rice, for a money consideration, executed a contract by which he agreed to convey to Lyman C. Dayton certain lands when he (Rice) should have obtained title thereto. Having obtained title he refused to make conveyance, and Dayton, in March, 1855, commenced an action against him, in the district court for Ramsey county, to enforce specific performance. In June, 1855, upon Rice's demurrer to the complaint, the court adjudged and determined that Dayton was not entitled to a conveyance of any portion of the lands, upon the ground that the contract to convey was against public policy, and null and void, but that Dayton was entitled to recover of Rice the money paid him as before stated. From the judgment no appeal was taken. In 1859 Susan M. Cullen, one of the plaintiffs, became owner of a portion of the lands mentioned, and in 1867 C. D. Gilfillan became owner of another portion of the same. Sometime in 1871 Rice died.

On February 29, 1868, Dayton filed his petition in bankruptcy. In December, 1872, he was duly adjudged a bankrupt, and the defendant Simonton was duly appointed his assignee. He accepted the appointment, and entered upon its duties, and in January 1873, the register in bankruptcy executed and delivered to him an assignment of all the estate, real and personal, which belonged to Dayton on February 29, 1868. The schedule of assets filed by Dayton, at the time of filing his petition in bankruptcy, contained, among others, the following item, to-wit: "Interest in land purchased of Charles R. Rice, (describing it.) The property was deeded to other parties by Rice; title in litigation" — this item referring to Dayton's supposed interest in the lands under the contract before mentioned. In February, 1875, Susan M. Cullen and Gilfillan were admitted as parties defendant in the action between Dayton and Rice. Such proceedings were had therein that on April 9, 1875, judgment was duly entered dismissing the action for want of prosecution. In March, 1875, defendant Simonton applied to the court for permission to prosecute the action as assignee. His application was denied by an order of April 9, 1875. Dayton made a motion to vacate the judgment of dismissal, and also appealed from the order of dismissal to the supreme court, but Simonton refused to take or prosecute said appeal, and wholly abandoned the action.

Afterwards, in October, 1875, the parties to the action — viz.: Dayton, plaintiff, and S. M. Cullen and Gilfillan, defendants — entered into a written stipulation, by which they agreed that the motion to vacate the judgment be and is withdrawn; that the whole subject-matter of the action has been and is fully settled; that the judgment of dismissal shall stand as a valid final judgment in the action, and that the appeal from the order of dismissal shall be dismissed. The motion to vacate was accordingly withdrawn, and the appeal dismissed, and, in consideration thereof, the plaintiffs Susan M. and Orlan O. Cullen executed and delivered to Dayton an agreement as follows, to-wit:

                "$1,635.                 ST. PAUL, MINN., Oct. 7, 1875
                

"We promise to pay to Lyman C. Dayton, or his order, $1,635, at the First National Bank of St. Paul, for value received, out of the first money hereafter received by us from the sale of the property to the Protestant Orphan Asylum; the said sum to bear interest at the rate of eight per cent. per annum, at the expiration of three months from this date.

                                                    "SUSAN M. CULLEN
                                                    "ORLAN O. CULLEN."
                

On December 11, 1875, Dayton, for value, sold and transferred the agreement to the firm of Dawson & Co., (then and now composed of defendants Dawson, Smith, and Scheffer,) under circumstances which, as the court finds, estop the plaintiffs to deny the validity of the agreement, or to deny, or in any manner (by suit or otherwise) to question or dispute the title of Dayton thereto, at the time when he sold and transferred it to Dawson & Co. On March 6, 1876, Simonton served on Susan M. Cullen a notice informing her that he was Dayton's assignee, and that moneys due Dayton should be paid to him. The plaintiffs having received, on account of sales of the property referred to in their agreement, the sum of $2,500, Dawson & Co. duly demanded payment of the agreement, which was refused.

Thereafter, on March 13, 1876, ...