Murray v. Foskett

• Court: Minnesota Supreme Court
• Writing for the Court: JAGGARD, J.
• Citation: Murray v. Foskett, 114 Minn. 44, 130 N.W. 14 (Minn. 1911)
• Decision Date: 24 February 1911
• Docket Number: 16,843 - (190)
• Parties: ASHER MURRAY v. L. D. FOSKETT and Another

130 N.W. 14

114 Minn. 44

ASHER MURRAY v. L. D. FOSKETT and Another

Nos. 16,843 - (190)

Supreme Court of Minnesota

February 24, 1911

Action in the district court for Polk county to recover $1,355 or to require defendant to pay the mortgage incumbrances against certain described premises, with accrued interest from the date of delivery of certain deeds, and pay the balance of the purchase price for the premises at the rate of $4 per acre. In their answer defendants, among other matters, alleged that there were only three hundred twenty acres of land included in the deeds delivered to Olaus Jacobson, amounting in all at the value placed thereon by plaintiff, to the sum of $1,280 and that the mortgage incumbrance thereon amounted to $848.50, leaving plaintiff's equity therein $431.50; that in case it should be determined that defendants were liable to plaintiff in any sum, the amount should not exceed the value of plaintiff's equity in the premises. The reply admitted the mortgages had not been paid, but denied the other allegations of the answer, except those allegations constituting admissions of plaintiff's amended complaint. The case was tried before Watts, J., who made findings of fact and as conclusion of law found that plaintiff was entitled to judgment for $1,250. From an order denying defendants' motion for a new trial, they appealed. Affirmed.

SYLLABUS

Effect of stipulation -- deposit of deeds in escrow.

A grantor, plaintiff, deposited three warranty deeds in escrow with instructions to deliver on payment of $4 per acre, to pay the mortgages thereon, and to remit the balance less expenses. The depository bank, defendant, delivered the deeds to another bank. One deed was returned to plaintiff, but two were recorded. The mortgages were not paid. It was stipulated "that the liability of the defendant in this case is the same as if the money called for by the agreement under which the deeds were delivered to defendant was in fact actually paid to the defendant." It is held, under such stipulation, the trial court was justified in giving plaintiff judgment in a sum obtained by multiplying $4 by the number of acres in the two recorded deeds.

Acknowledged deed -- admissible in evidence, when.

Under section 4710, R. L. 1905, a duly acknowledged deed, with the certificate of the proper officer indorsed thereon, in possession of and produced by the party claiming under it, is, if relevant to the issues, admissible in evidence without other proof, and is prima facie evidence, not only that it was signed by the grantor, but also that it was delivered. Tucker v. Helgren, 102 Minn. 382.

Geo. M. Bleecker and James E. O'Brien, for appellants.

H. J. Maxfield and Martin O'Brien, for respondent.

OPINION

JAGGARD, J. ^[1]

This is an action to recover damages claimed to have resulted from the failure to perform the terms of an escrow agreement. The court, on findings of fact and conclusions of law, ordered judgment for plaintiff and respondent. The defendant and appellant moved for judgment notwithstanding the decision or for a new trial. The appeal was taken from the order denying that motion.

Plaintiff was the owner of four hundred eighty acres of land in Hubbard county, incumbered with mortgages aggregating $1,160.50. The plaintiff agreed to sell that land free from incumbrance to one Jacobson for $4 per acre. With his wife he executed three separate warranty deeds, each covering one hundred sixty acres, and each running to Jacobson. Plaintiff sent these three deeds, with an abstract of title, to defendant, with the following instructions:

"You may deliver these deeds and abstracts to Mr. Peterson, on payment of nineteen hundred and twenty dollars balance due me on sale of this land. Out of this money you may deduct $1,160.50, and remit it to Frank Wilson Investment Co., of Wadena, to pay three mortgages now on the land, as per statement herewith. You can also reserve say ten or fifteen dollars to cover expense of recording releases of these mortgages and showing them on the abstracts, and remit balance to me. And, when Mr. Peterson gives you a statement of the share of expense properly chargeable to me, you may pay him out of the $10 or $15 reserved, and send balance to me, with statement, less your own charges."

Defendant received the deeds and instructions, and undertook the collection, and sent them to another bank for delivery on payment. One of the three original deeds was returned, undelivered and unrecorded, to the plaintiff, by the defendant. Two deeds appear to have been recorded, but the details of their delivery are undisclosed. The defendant on this appeal insists upon the substance of many facts as to which there is no occasion to make any statement here, in view of the stipulation which will be hereinafter quoted. The lower court ordered judgment for the plaintiff for $1,280; that is, $4 per acre for the three hundred twenty acres covered by the two deeds which were recorded. The defendant insists that he is aggrieved by the decision of the court in two respects, which will be considered in the order in which he states them.

1. Defendant insists: "It appears from the evidence that respondent has not suffered any damage, for the reason that he is still the owner of the land; no title having passed because of the unauthorized delivery of the deeds." In that connection he insists that there is no evidence as to the delivery of these deeds by the defendant, nor as to their possession by Jacobson or his agents, nor as to who brought or sent them to the register's office. It is quite unnecessary to further state either defendant's position or to consider the authorities to which he refers us, because...