Hage v. Benner

• Decision Date: 08 July 1910
• Docket Number: 16,624 - (182)
• Citation: 127 N.W. 3,111 Minn. 365
• Parties: H. J. HAGE v. FRANKLIN BENNER
• Court: Minnesota Supreme Court

127 N.W. 3

111 Minn. 365

H. J. HAGE v. FRANKLIN BENNER

Nos. 16,624 - (182)

Supreme Court of Minnesota

July 8, 1910

Action in the district court for Crow Wing county to determine adverse claims to vacant and unoccupied land. The substance of the answer is stated in the opinion. The case was tried before Wright, J., who found in favor of plaintiff and denied defendant's motion for a new trial. From the judgment entered pursuant to the findings, defendant appealed. Affirmed.

SYLLABUS

Termination of land contract -- sufficiency of notice.

A notice for the termination of a contract for the sale of land, given under section 4442, R.L. 1905, where the default complained of consists in the failure of the vendee to pay an installment of the purchase price of the land, need not specify the amount claimed to be due.

Service of notice.

Notice of termination held properly served upon the person named in the contract as vendee, there being no evidence requiring a finding by the trial court that the defendant, not the vendee so named, was the real party in interest.

Harlan P. Roberts, for appellant.

A. T Larson and Francis H. De Groat, for respondent.

OPINION

BROWN, J.

Action to determine adverse claims to real property in which plaintiff had judgment, and defendant appealed.

The facts are as follows: On March 6, 1908, plaintiff, being the owner of the property, entered into a written contract for the sale and conveyance of the same to one Fred J. Scott. The contract was in the usual form of executory agreements of the kind, and fully expressed the conditions and terms of sale. The purchase price was $2,600. Two hundred and fifty dollars was paid at the time the contract was entered into, $250 was payable within thirty days, $1,100 within four months, and the balance, $1,000, within one year. The first deferred payment of $250 was made in accordance with the terms of the contract, but in respect to the second payment Scott defaulted, and, by reason thereof, plaintiff gave notice of the termination of the contract, as provided for by section 4442, R.L. 1905. The notice bears date February 1, 1909, and was served personally upon the vendee, Scott, on February 3 1909. Scott assigned the contract to defendant by an instrument bearing date February 1, 1909, which was recorded March 13, 1909, but no notice of the same was given to plaintiff prior to the service of the notice of termination. Thereafter, on March 31, 1909, this action was brought to determine adverse claims. The complaint sets up title in plaintiff, and an adverse claim by defendant which it alleges is without validity. The answer sets out the Scott contract, the assignment thereof to defendant, and asserts an equitable title, or interest, in the land thereunder. Plaintiff in reply alleges the termination of the contract by the notice given for that purpose. The court made general findings to the effect that the plaintiff was the owner of the property, and that defendant had no right, title, or interest therein. Judgment was entered accordingly.

Two questions are presented on this appeal: (1) Whether the notice of termination was sufficient in form and contained the necessary information concerning the default complained of; and (2) whether the notice was served upon the proper party.

1. The notice of termination, so far as here material, was as follows:

"To Fred J. Scott, Vendee:

"You will please take notice that default has occurred in the terms and conditions of that certain contract for the conveyance of the land hereinafter described, wherein H. J. Hage and Carrie Hage are vendors, and you, Fred J. Scott, is [sic] vendee, which contract is dated the 6th day of March, A.D. 1908. [Here follows a description of the property.]

"The default consists in this, that you have failed to make the payments of principal and interest to be made and paid under the terms of the said agreement and contract. You will therefore take further notice that the said contract and agreement will be cancelled and terminated * * * unless prior to the expiration of said thirty days you pay, and cause to be paid * * * all overdue payments of principal and interest * * * together with the costs and expenses of these proceedings."

Section 4442, R.L. 1905, under which the notice was given, provides, speaking generally, that, when default is made in the conditions of any contract for the conveyance of real property by reason...