Nelson Real Estate Agency v. Seeman

• Citation: 147 Minn. 354,180 N.W. 227
• Decision Date: 17 December 1920
• Docket Number: No. 21929.,21929.
• Parties: NELSON REAL ESTATE AGENCY v. SEEMAN.
• Court: Minnesota Supreme Court

147 Minn. 354

180 N.W. 227

NELSON REAL ESTATE AGENCY

v.SEEMAN.

No. 21929.

Supreme Court of Minnesota.

Dec. 17, 1920.

Appeal from District Court, Sibley County; C. M. Tifft, Judge.

Action by the Nelson Real Estate Agency against Florenz Seeman, as administratrix of Fred Richter, deceased, for specific performance of decedent's contract to purchase, or, in the alternative, for the cancellation thereof. Judgment ordered, canceling the contract on condition. From an order denying a motion for an amendment of the findings, or for a new trial, plaintiff appeals. Order reversed.

Syllabus by the Court

The act of Congress known as the Soldiers' and Sailors' Civil Relief Act (40 Stat. 440 [U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3078 1/4 a-3078 1/4 ss]) by its express language becomes inoperative and without effect upon the death or discharge of a soldier or sailor within its protection, and an order of a court, requiring a refundment or return of money paid prior to his entry into the service upon an executory contract for the sale of land as a condition to a cancellation thereof, is not authorized by the act in an action or proceeding commenced subsequent to such death or discharge.

A vendee, who defaults in the payments due under such a contract and announces his inability to perform the same, is not entitled, unless the contract so provides, to a return of a payment made when the contract was entered into; nor has the court, in the absence of a statute to that effect, authority in equity to require a return of the money by the vendor as a condition to a cancellation of the contract. Geo. A. & C. H. MacKenzie, of Gaylord, for appellant.

T. Otto Streissguth, of Minneapolis, for respondent.

BROWN, C. J.

The facts in the case are not in dispute. It appears that on July 3, 1917, plaintiff and decedent, Fred Richter, entered into an executory contract for the sale of certain land owned by plaintiff, situated in the state of Montana. The contract was in the usual form of such instruments, provided for a down payment on the purchase price of $1,000, which was made, and the payment of the balance at stated times in the future, upon the completion of which plaintiffs were to execute to decedent a conveyance of the land. On September 20, 1917, decedent, being subject to the military service under the federal Selective Draft Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 2044a-2044k), was duly inducted into that service, and continued therein until October 18, 1918, when he was killed in action on the battle fields of France. Two deferred payments on the purchase price of the land fell due under the contract during the time of his military service, and were not made, and to this extent there was default on his part in the performance of the contract. Subsequent to his death defendant herein was duly commissioned administrator of his estate by the probate court of Sibley county, this state, whereof decedent was a resident at the time he entered the military service.

This action was thereafter brought against him as such administrator for the specific performance of the contract, or for the cancellation thereof if performance cannot be had. Defendant interposed in defense the military service of decedent, and conceding his default in the payments due under the contract, and alleging that by reason of lack of funds the estate is unable to complete the same, demanded, under the provisions of the act of Congress known as the...