Law v. Butler

• Decision Date: 14 November 1890
• Parties: LAW v BUTLER.
• Court: Minnesota Supreme Court

44 Minn. 482

47 N.W. 53

LAWvBUTLER.

Supreme Court of Minnesota.

Nov. 14, 1890.

(Syllabus by the Court.)

1. D. held a certificate of sale of school lands, and with his wife was occupying the land as a homestead, and he made an assignment of the certificate to B., the wife not affixing her signature to the assignment; but they surrendered the possession of the land to B., who, and his assigns thereafter, continued in possession. Held, the assignment was void. Following Barton v. Drake, 21 Minn. 299, and Alt v. Banholzer, 39 Minn. 511,40 N. W. Rep. 830.

2. That no act of the wife, (unless amounting to an estoppel,) except it amounted to affixing her signature, could make the assignment effectual.

3. That, to make the assignment effectual by estoppel, the estoppel must operate as to both the husband and wife.

4. Facts considered and held not to make an estoppel as to the wife, (even if she could estop herself.)

5. The assignment did not become operative upon the land afterwards ceasing to be a homestead.

6. A vendor's lien upon real estate is not, in general, assignable. Following Hammond v. Peyton, 34 Minn. 529,27 N. W. Rep. 72.

7. Facts considered and held not to show a subrogation of defendant, claiming under B., to a vendor's lien, claimed to have existed in the vendor or assignor of D.

Appeal from district court, Dakota county; CROSBY, Judge.

C. D. O'Brien and Pinch & Twohy, for appellant.

John B. & W. H. Sanborn, for respondent.

GILFILLAN, C. J.

Action under the statute to determine adverse claims to real estate, the plaintiff claiming to be the owner in fee. The answer alleges that the title was derived by patent from the state, the lands having been school lands; that the plaintiff fraudulently procured the patent to be issued to him, when by reason of facts stated in the answer, defendant was entitled to it, and it ought to have been issued to him and not to plaintiff. The cause was tried below by the court, without a jury, and the court filed its findings of fact, and directing judgment for plaintiff. Defendant appeals from an order denying his motion for a new trial.

No assignment of error is made to the findings of fact, and they are to be taken as conclusive. They are briefly these: In December, 1862, the lands were school lands of the state, and were purchased by one Sackett for $440, of which he paid $60, and the land commissioner issued to him the usual certificate of sale. In April, 1871, Sackett assigned the certificate to one Scarborough for the consideration of $1,600, for which he gave the former his promissory notes, and of which he afterwards paid $600. In March, 1872, he assigned the certificate to one Dean for the consideration of $1,600, of which the latter paid $900 at the time, and for the remainder gave Scarborough his notes, which Scarborough, without Dean's consent, indorsed to Sackett to apply on his indebtedness to him. Dean, who was a married man, immediately went into possession of the land, and with his wife occupied it as a homestead until October, 1877, when he, his wife not joining with him, made an assignment to Patrick Butler, the latter, as part of the consideration, giving his notes for $800, which he afterwards paid to Sackett in payment of the said notes of Dean, and for the remainder gave his note to Dean for $520, due December 31, 1878, which has been partly but not fully paid. The assignment was not delivered to Butler, but was deposited with one Phillips, to be held by him until the $520 note should be fully paid, and then, but not before, to be delivered to Butler. Dean, with his wife, continued to occupy the land till the latter part of November, 1877, when they removed from it, and surrendered possession to Butler, and he and his assigns have ever since been in possession. In December, 1877, Butler assigned the certificate to Catherine Butler, and in May, 1888, she executed to defendant a quitclaim deed of the land. In July, 1887, Sackett executed to defendant a quitclaim deed of the land. In December, 1887, Dean executed to plaintiff a quitclaim deed of the land, and in February, 1888, the latter paid to the state $394, the amount due on the certificate, and a patent for the land was thereupon issued to him. Until the patent issued, the legal title to the land remained in the state, and under the patent it passed to plaintiff. The certificate of sale gave to the rightful holder of it an equitable title to the land, with the right of possession. Where a patent issues to one, and another was equitably entitled to have it issue to him, the patentee is deemed to hold the legal title in trust for the party equitably entitled to it, and the latter may enforce a transfer of the legal title to him, and the judgment of the court may pass it to him. But the burden is on him who claims against the patent. He must show an equitable right to the legal title superior to that of the party to whom the patent issued. Had the assignment by Dean to Patrick Butler been valid, the latter would thereupon have become entitled to perform the conditions of the certificate of sale, and have the patent issue to him; and, without an actual assignment, had he acquired an equitable right to have the certificate assigned to him,-a right superior to that of the persons who procured the patent,-the court would enforce that right as against the patentee. We may lay out of account the deed from Sackett to Butler, for, when it was executed,...