King v. Remington

• Decision Date: 09 October 1886
• Citation: 29 N.W. 352,36 Minn. 15
• Parties: Caroline M. King v. Philo Remington and others. William S. King v. Philo Remington and others
• Court: Minnesota Supreme Court

29 N.W. 352

36 Minn. 15

Caroline M. King v. Philo Remington and others. William S. King v. Philo Remington and others

Supreme Court of Minnesota

October 9, 1886

These actions were brought in the district court for Hennepin county, against Philo Remington and his wife, Louis F. Menage and his wife, and Robert S. Innes, and were tried together by Young and Koon, JJ., without a jury. In each case a judgment was ordered for plaintiff, a new trial was refused, and the defendants appealed.

Orders affirmed.

John M Shaw and Albert L. Levi, for all the appellants.

Francis Kernan, for appellant Philo Remington.

Gordon E. Cole, for appellants Louis F. Menage and wife.

C. K Davis and J. E. Miner, for appellant R. S. Innes.

Eugene M. Wilson, Ripley & Morrison, John B. Atwater, and John Van Voorhis, for respondents.

OPINION

Gilfillan, C. J.

These two cases grew out of the same transactions, and depend on the same condition of facts, and may be disposed of in the same opinion. The cases are very voluminous, and have been voluminously (and exhaustively) argued. The record in each case covers over 800 printed pages, and the briefs or arguments in both cases (they were argued together) cover 1,100 printed pages.

The facts, stating them as briefly as can be done and present the questions decided, are: On and prior to June 15, 1875 William S. King owned large quantities of land of great value in the counties of Hennepin and Meeker, in this state, and was largely indebted beyond his present means of paying, and suit had been brought against him, and his property in Hennepin county attached, upon a pretended claim for a very large amount. Caroline M. King, his wife, also owned a considerable amount of valuable real estate in the county of Hennepin. The lands were more or less incumbered with mortgage and judgment liens.

On the date mentioned the two Kings executed to Philo Remington three deeds, conveying to him absolutely, in terms, the greater part of the real estate of William S., and all the real estate of Caroline M. At the same time William S. and Remington executed a contract in writing, as follows:

"This agreement, made this fifteenth day of June, 1875, between Philo Remington, of the village of Ilion, county of Herkimer, state of New York, of the first part, and William S. King, of Minneapolis, of the state of Minnesota, of the second part, witnesseth that the said parties have agreed as follows: Whereas, on the day aforesaid, the said King and wife executed and delivered to the said Remington three several deeds of a large quantity of real estate situated in the counties of Hennepin and Meeker, in the state aforesaid, and which several deeds are each on record in the respective offices of the registers of the respective counties aforesaid, and said deeds and the records aforesaid are hereby referred to and form a part of this agreement, except that one of said deeds by mistake has inserted in it one 80-acre lot which had been sold and conveyed by said King, before the conveyance was executed, to William Windom, of the state aforesaid, and which was inserted by mistake, and which 80-acre lot forms no part of this contract. The aforesaid conveyances have been made to the said Remington to secure to him indebtedness which the said King owes to the said Remington, and for liabilities assumed by the said Remington, and for moneys already furnished to the said King at his request, and for moneys still to be advanced, and for liens and liabilities which exist on the lands so conveyed as aforesaid, at the time of the execution of the said conveyances as aforesaid. The several sums or items making up the respective amounts of the said liabilities so assumed as aforesaid, and the amount in items of the moneys already paid and advanced at the request of said King, appear upon a schedule marked 'A,' annexed to this instrument, and which forms a part thereof, and which forms a part of this contract; which said indebtedness amounts in all to about the sum of $ 80,000, aside from liens and judgments which exist on said lands at the date of this instrument, except some of the liens aforesaid, which have since already been paid. It is understood that the liens existing on the lands aforesaid conveyed, represented by outstanding mortgages, are to remain, and the conveyances aforesaid are taken by the said Remington subject to the same; which said liens appear upon the several abstracts of title now in the possession of said Remington, which have been made for him, and which liens said Remington will be compelled to pay and assume, provided the conditions of this instrument are not complied with and fulfilled on the part of the said King. It is mutually agreed by and between the parties to this instrument that the said Remington is to still further furnish, in money or current funds, to the said King, about $ 53,000, which money is to be used in paying debts and liabilities of said King. The more pressing demands are to be first paid, and among said liabilities are judgments which are now liens on the lands aforesaid conveyed, or some part of the same.

"It is also further mutually agreed and understood by and between the parties to this instrument that said Remington will still further assume and give to said King his note or notes, to the amount of about $ 70,000, and it is understood that said note or notes are to be used to pay debts and liabilities of the said King, and that notes are to be taken at as long a time as practicable, -- in three, six, and twelve months, or about that length of time.

"It is further mutually agreed that at all times when payments in cash are to be made, or a note or notes given, the said Remington shall be consulted, and shall have the right to make the application of the funds or notes to be used in the payment of the debts and liabilities of the said King; and it is further mutually agreed that none of the advances of money or notes hereinbefore referred to shall be made until the time for appealing expires, which is understood to be in thirty days after service of a certain order dismissing and vacating a lien created by an attachment previously issued against the property of the said King, in a suit brought against him by the Pacific Mail Steamship Company, in the court of common pleas in and for the county of Hennepin, in the state of Minnesota. It is understood that said lien is to be removed before such advances, or any part of them, are made, and the said claim of the said Pacific Mail Steamship Company is not to be paid by said Remington, or any part thereof, but the title to the said lands is to be free therefrom; and that is one of the conditions of this instrument.

"It is further understood and agreed, and the said King hereby agrees to use any of his own funds or property, so far as he can, to pay any of his liabilities, and to refund to said Remington the money which he furnishes and pays, and the liabilities which he assumes, as fast as the said King can reasonably do so. And the said King also agrees to do the best he can to pay his own debts and liabilities at all times, and will honestly and faithfully exert himself so that the said Remington's advances, by note or otherwise, shall be as small as possible, and below the limit herein and hereby specified, if possible, and as small in amount as possible. It is also further mutually agreed that the said King is to exert and use his best endeavors to find purchasers and make sales of the said real estate hereby conveyed to the said Remington as fast as he can, and said Remington will convey the said title to the said purchaser or purchasers, or convey such title as he has; and any money realized by any such sale or sales is to be received by the said Remington, and applied by the said Remington, so far as the same will go, in the extinguishment and satisfaction of the indebtedness of the said King to the said Remington, as hereinbefore referred to; said Remington to make the said application of funds so received.

"It is further mutually agreed by and between said parties that said Remington may at any time, in his discretion, using his own judgment, under the advice of Amos H. Prescott, his attorney, at any time when his interest in his judgment requires it, sell all or any part of said property aforesaid conveyed to him, to refund, reimburse, and pay up each and all of the indebtedness and liabilities aforesaid, including interest, assumed and to be assumed, and said King hereby agrees to the same; and said King also agrees that all expenses of any character connected with the said business, including costs, expenses, and charges of Amos H. Prescott, his attorney and counsel, shall be taken out of the moneys so realized. And it is further mutually agreed that said Remington may at any time execute mortgage or mortgages on said real estate, or any part thereof, to reimburse himself in whole or in part for any of his advances under this agreement; and any mortgage now existing on said real estate, or any part thereof, may be released or discharged, and a new mortgage given on the same or other of said lands under this agreement, if it should be necessary or advisable so to do.

"In witness whereof we have hereunto set our hands and seals the day and year above written. P. Remington. [Seal.]

"Wm. S. King. [Seal.]

"In presence of witnesses:

"W. C. Squire.

"P. Osgood."

No consideration was paid for said conveyances, except as specified in said contract. The deeds were duly recorded, but the contract was not recorded. Subsequently, from time to time, Remington advanced to King, and in satisfying mortgage and judgment liens, and purchasing or acquiring title to lands of the Kings, some included and some not...