Fisk v. Stewart
| Decision Date | 01 March 1880 |
| Parties | James L. Fisk and Wife v. Jacob H. Stewart |
| Court | Minnesota Supreme Court |
Plaintiffs brought this action in the district court for Ramsey county, on September 20, 1875, praying that a certain conveyance made by them to the defendant on January 15, 1862 might be decreed to be a mortgage, that defendant account for the rents and profits of the premises so conveyed which the defendant had received while in possession, and for all moneys received from sales made by him, and that the defendant pay to the plaintiffs the balance of such moneys after payment of the mortgage debt, and reconvey the premises to them. An appeal to this court from an order overruling a demurrer to the complaint is reported 24 Minn. 97, where the averments of the complaint are fully stated in the opinion of the court. After the determination of that appeal, the defendant answered, pleading, among other things, the statute of limitations, and the action was tried before Brill, J whose findings of fact were, in substance, as follows: The premises in question, which are situate on White Bear Lake in Ramsey county, were formerly owned by one James F. Murray who, on March 9, 1857, mortgaged them to one Chase, who afterwards foreclosed the mortgage, and purchased the property at the foreclosure sale, on September 10, 1859, for $ 465, its market value being then $ 1,500. On February 8, 1860, James F. Murray and wife conveyed the premises to the plaintiffs, who were husband and wife, there being an understanding between these parties that one John B. Murray, a son of James F., and a brother-in-law of James L. Fisk, and who then occupied a hotel on the premises, known as the Murray House, was to remain in possession, and pay off the incumbrances thereon, if able to do so, and, on such payment, the plaintiffs were to convey to him the Murray House, and a few acres around it, the quantity not being specified, and John B. remained in possession under this agreement.
A few days before the expiration of the time for redemption from the mortgage sale, Chase agreed to extend the time therefor a short time, and to convey the premises as plaintiffs should desire, on being paid the redemption money. About the same time an oral agreement was made between plaintiffs and one Bennett, that after the expiration of the time for redemption, Bennett should pay the money necessary to redeem, and take a conveyance from Chase, and lease the premises to John B. Murray for a year, and convey to him in fee upon being paid by Murray, within the year, the amount paid by him to Chase, and the further sum of $ 225. No redemption was made within the year; Chase received the sheriff's deed; and on September 29, 1860, pursuant to their agreement, Bennett paid to Chase (who refused to receive a less amount) $ 900, and on October 15, 1860, Chase conveyed the premises in fee simple to Bennett. As part of the same transaction, and at plaintiffs' request, Bennett gave John B. Murray a lease of the premises for one year from October 1, 1860, at the yearly rent of $ 225, to be paid in one payment, reserving a right of re-entry on default. The lease contained the usual covenants on the part of the lessee, and a covenant on the lessor's part that the lessee "shall have the privilege of buying the said described premises within the term aforesaid, if he so chooses, for the sum of $ 910, (besides the rent aforesaid,) to be paid to said R. H. Bennett," who was to convey on receiving such payment. It was agreed between John B. Murray, Bennett and plaintiffs that the conveyance to Murray, as provided in the lease, should satisfy all plaintiffs' claims, and that they and Murray would afterwards adjust their interest among themselves, their understanding as to Murray's right to a portion of the premises still continuing, and he having paid part of the incumbrances on the property prior to the conveyance to Bennett. Murray continued to occupy the premises, but did not make the payment stipulated in the lease.
In January, 1862, John B. Murray informed the defendant (who was his and plaintiffs' family physician) of the facts aforesaid, and requested him to advance the money to pay Bennett, as stipulated in the agreement, whereupon the defendant, on January 15, 1862, at the request of John B. Murray and the plaintiffs, paid Bennett $ 1,200, in consideration of which sum, and at the request of plaintiffs and John B. Murray, Bennett conveyed the premises in fee to the defendant; and, as part of the same transaction, and to make the title to the premises satisfactory to defendant, and induce him to advance the money, the plaintiffs and John B. Murray executed and delivered to defendant a conveyance, bearing date January 15, 1862, of all their right, title and interest in the premises. About the same time, and as part of the same transaction, the defendant leased the premises to John B. Murray for the term of one year from January 1, 1862, at the yearly rent of $ 250, payable in installments. The lease contained the usual reservation of a right of re-entry in case of a breach of any of the lessee's covenants, and the usual covenants on the part of lessor and lessee, and also the following agreement: "And it is hereby further understood and agreed by and between said parties that said party of the second part, (John B. Murray,) complying with all his covenants aforesaid, shall, at any time during his said term, have the privilege to purchase from the party of the first part all the estate, right, title and interest of the party of the first part in said premises hereby leased, by paying up to the said party of the first part the full amount of rent for the term aforesaid, amounting to the sum of $ 250, and also the further sum of $ 1,200 cash, as purchase-money therefor in hand paid at the time of said purchase." And it was mutually understood that if said sum of $ 1,200 was not paid within the year, the time for payment should be extended. The payment by defendant to Bennett was for the benefit of plaintiffs and John B. Murray, and the intention of all these parties was to give plaintiffs and Murray an opportunity to secure the premises for themselves, but in the manner and on the terms, only, provided in the lease from defendant; and it was mutually understood that Murray should represent the rights of the plaintiffs and himself in the premises, and that a conveyance to him, as provided in the lease, should satisfy all claims of plaintiffs to the premises, so far as defendant was concerned -- the rights of the plaintiffs and Murray to be settled by themselves thereafter.
John B. Murray continued to occupy the premises. The sum of $ 250, stipulated to be paid defendant by Murray for the year 1862, was paid, a part within the year, and a part in 1863. At the end of the year 1862 the agreement between defendant and Murray was, with plaintiffs' concurrence, extended orally for another year, the rent being fixed, however, at $ 150, payable not later than October, 1863, which sum was paid to defendant. At the end of the year 1863, at Murray's request, and with plaintiffs' concurrence, the agreement was orally extended for another year on the same terms, and the rent of $ 150 for the year 1864 was paid at divers times, the last payment being made in July or August, 1865. In the spring of 1865, at Murray's request, the defendant orally agreed to an extension of the agreement for that year, on condition that the rent of $ 150, and all arrearages, be paid on or before September 1, 1865. Murray continued to occupy the premises, but no part of the sum of $ 150 for the year 1865 was ever paid or offered to be paid. The last payment ever made was made in July or August, 1865, and was the balance due on the rent for 1864.
On September 19, 1865, the defendant served on John B. Murray a written notice and demand that he deliver to defendant possession of the premises, and quit the premises without delay, the notice stating that defendant was unwilling that he should hold the same or continue in the tenancy any longer, of which demand the plaintiffs then had knowledge. Since the service of this notice the defendant has not recognized any right of Murray or of plaintiffs in or to the premises or the possession thereof, in any way. Murray still continuing in possession, the defendant instituted proceedings under the statute, to dispossess him, as a tenant holding over. Murray defended, and alleged in his answer that the deed from Bennett to defendant, and the lease to Murray with its agreement for purchase, were in effect a mortgage to secure said $ 1,200 and interest, and that Murray was not liable to pay rent to defendant. The title to real estate being involved and in dispute in the proceeding, the justice of the peace before whom it was pending certified and returned the case to the district court for Ramsey county where, upon a trial by jury, the defendant had a verdict against Murray. A motion for a new trial was denied, and Murray appealed to this court, where the order was affirmed, (see Stewart v. Murray, 13 Minn. 426,) and, on the filing of the mandate of this court in the district court, judgment was entered on the verdict, adjudging that the defendant have restitution and possession of the premises. This judgment was entered January 13, 1869, and sometime in that year Murray surrendered possession of the premises to the defendant, who continued in peaceable possession, uninterruptedly, down to the time this case was determined in the district court, of all the premises, except such portions as he had conveyed to other persons. And ever since the service of the notice on Murray, the defendant has always asserted his absolute ownership of the premises, which fact the plaintiffs and Murray...
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