Meyers v. Markham
| Decision Date | 23 July 1903 |
| Docket Number | 13,506 - (173) |
| Parties | SIMON MEYERS v. JAMES D. MARKHAM |
| Court | Minnesota Supreme Court |
Original Opinion Filed July 10, 1903
Vendor and Purchaser.
Contract for the sale of real property construed, and cause remanded to the court below, with directions to modify its conclusions of law, and award the relief referred to in the opinion.
McNamara v. Pengilly Distinguished.
McNamara v. Pengilly, 64 Minn. 543, to the effect that a vendee in a contract for the sale of land is not bound to accept a deed from any person other than his vendor, distinguished, and the rule there laid down held not to apply to a contract for a quitclaim deed.
On Reargument, October 23, 1903.
Conveyance by Vendor -- Election of Remedies.
Where the vendor in a contract for the sale of land subsequently conveys the land to a third party, the contract vendee has the election of two remedies: (1) To acquiesce in the conveyance, and seek a performance of the contract by a third party; or (2) treat the conveyance as a breach of the contract, and resort to an action against the vendor for damages.
Cloud on Title.
In this case it is held that, by defendant's refusal to carry out the contract with the third party, he is conclusively presumed to have elected to pursue his remedy against his vendor; and plaintiff, vendee in the subsequent conveyance, is entitled to have the record of the contract removed, as a cloud upon his title.
On July 23, 1903, the following order was filed:
On Reargument
An application for a reargument herein having been duly made and considered, it is ordered that it be, and is hereby, granted upon the question whether, by reason of the fact that the plaintiff gave the defendant notice to perform the contract, referred to in the complaint, as provided by Laws 1897, p. 431 (c. 223), and the defendant's failure so to do, the plaintiff is not entitled to judgment cancelling the contract, and excluding the defendant from any interest in the land therein described, subject to whatever rights the defendant may have, if any, against any party, for damages for a breach of the contract; the argument to be on briefs; the appellant to serve and file his within thirty days from this date, and the respondent within thirty days thereafter.
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