Mathwig v. Ostrand

• Decision Date: 20 April 1916
• Docket Number: 19,597 - (50)
• Parties: R. C. MATHWIG v. ANDREW OSTRAND AND OTHERS
• Court: Minnesota Supreme Court

157 N.W. 589

132 Minn. 346

R. C. MATHWIG v. ANDREW OSTRAND AND OTHERS

Nos. 19,597 - (50)

Supreme Court of Minnesota

April 20, 1916

Action in the district court for Marshall county against Andrew Ostrand and his wife, Albert Ostrand, G. N. Morkassel and Fred Enix to enforce specific performance of a contract to convey land. The action was tried before Grindeland, J., who made findings and ordered judgment dismissing the action. From an order denying his motion for a new trial, plaintiff appealed. Affirmed.

SYLLABUS

Vendor and purchaser -- vendee may abandon contract.

1. The vendee in a contract for the sale of lands may abandon his unperfected equitable title.

Vendor and purchaser -- statutory notice of termination of contract by vendor.

2. The statute, G.S. 1913, § 8081 (R.L., 1905, § 4442, as amended by Laws 1913, c. 136), provides the exclusive method by which the vendor in a contract of sale may terminate the rights of the vendee because of defaults in performance; but it does not relieve the vendee from the effect of an abandonment which the vendor elects to treat as such and in which he acquiesces.

Vendor and purchaser -- abandonment of contract by both parties.

3. The evidence is sufficient to justify a finding of mutual abandonment of a contract of sale of lands, that is, an abandonment by the defendant which the plaintiff elected to treat as such and in which he acquiesced.

Julius J. Olson, Charles Loring and G. A. Youngquist, for appellant.

A. N Eckstrom, for respondents.

OPINION

DIBELL, C.

Action to enforce the specific performance of a contract to convey certain farm lands in Marshall county. The court found that the contract was mutually abandoned and denied the plaintiff relief. He appeals from the order denying his motion for a new trial.

1. Under the contract the plaintiff had an equitable title with the right of possession. He had not paid according to the contract and was not entitled to a deed. An unperfected equitable title such as this may be lost by abandonment. Smith v. Glover, 50 Minn. 58, 52 N.W. 210, 912. In this case the court very thoroughly considered the effect of an abandonment of an equitable title, and it distinguished between abandonment and laches, and noted the difference between the effect of abandonment and the effect of estoppel and of adverse possession. It said [page 75]: "Where the equitable right or title is not fully perfected, as where it accrues under a contract, and there remains something for the party to do under the contract in order to acquire, perfect preserve, or be entitled to a remedy upon it, he may abandon it. He may abandon his purpose to do what is required under the contract -- his purpose to acquire, perfect, preserve, or to become entitled to a remedy upon the right." A similar holding was made in Holingren v. Piete, 50 Minn. 27, 52 N.W. 266. That a perfect legal title cannot be lost by abandonment is held in Krueger v. Market, 124 Minn. 393, 145 N.W. 30, and Purcell v. Thornton, 128 Minn. 255, 150 N.W. 899, and in cases cited therein.

2. The plaintiff contends that there cannot be an abandonment since the enactment of the statute now embodied in G.S. 1913, § 8081 (R.L. 1905, § 4442), as amended by Laws 1913, p. 155, c. 136, providing that the vendor may terminate a contract to convey by the service of a notice as therein provided. The method prescribed by the statute has been held the exclusive method of terminating the contract by the vendor. Lamprey v. St. Paul & Chicago Ry. Co. 89 Minn. 187, 94 N.W. 555; Finnes v. Selover, Bates & Co. 102 Minn. 334, 113 N.W. 883; Chapman v. Propp, 125 Minn. 447, 147 N.W. 442. It is likened to a foreclosure of the vendee's equity of redemption. Hage v. Benner, 111 Minn. 365, 127 N.W. 3; First State Bank of Boyd v. Hayden, 121 Minn. 45, 140 N.W. 132; International Realty & Securities Corp. v. Vanderpoel, 127 Minn. 89, 148 N.W. 895. While this is the exclusive method by which the vendor may terminate the vendee's rights in the contract, it does not follow that the vendee may not by abandonment lose his rights. There is in the statute nothing inconsistent with giving full effect to an actual abandonment. The primary purpose of the statute is to prevent the vendor taking advantage, through a provision in the contract, or otherwise, of the vendee's failure to make payments on time or of other defaults, and depriving him of his rights in the property without a definite notice of cancelation. See Sylvester v. Holasek, 83 Minn. 362, 86 N.W. 336; Tingue v. Patch, 93 Minn. 437, 101 N.W. 792. It is not its purpose to relieve him of the effect of an abandonment of an unperfected equitable title, and we hold that such title may be lost by abandonment.

3. The remaining question is whether the evidence justifies the trial court's finding of mutual abandonment.

The contract was made on September 3, 1912. The consideration was $6,500. The plaintiff paid one dollar in cash. The sum of $499 was payable on November 1, 1912; $400 on March 1, 1913 $1,000 on March 1, 1914; $1,000 on March 1, 1915; $1,000 on March 1, 1916, and the balance of $2,600 was to be paid by the assumption of mortgages. The plaintiff was to pay the taxes. At the time of the sale the lands were in the process of seeding to rye. The plaintiff paid the defendant $95 for the seed. He did not pay the $499 which became due on November 1, 1912, nor the $400 that became due on March 1, 1913, nor the $1,000 that became due on March 1, 1914, nor any of the deferred payments, nor did he pay taxes. On December 31, 1912, the defendant, who was then in the state of Washington, wrote the plaintiff, telling him that the payment on the contract was past due and...