Nelson v. Rogers
| Decision Date | 10 August 1891 |
| Parties | Hans Nelson v. Edward G. Rogers and another. Same v. Charles E. Flandrau |
| Court | Minnesota Supreme Court |
In each of these cases the plaintiff appeals from a judgment of the district court for Ramsey county, entered on the decision of Egan, J.
Judgments affirmed.
Pinch & Twohy and Wm. S. Moore, for appellant.
Flandrau Squires & Cutcheon, for respondents in each case.
These two cases are so closely connected, the second depending on the decision of the first, that they may be disposed of in one opinion. The appeals are from judgments in favor of the defendants.
The plaintiff conveyed certain real estate to one Diether, who to secure a part of the purchase-money, executed to plaintiff two promissory notes, for $ 4,500 each, and a mortgage on the real estate. The actions are brought on the allegation of fact that the defendants Rogers and Bacon, having subsequently purchased and become the grantees of the real estate, in consideration of the conveyance to them, assumed and promised to pay said notes and mortgage, and for that purpose kept and retained in their hands $ 15,800 of the consideration on the sale to them; and that in the second case the defendant Flandrau, having purchased from Rogers and Bacon an undivided one-third of the real estate, assumed in the deed of conveyance to him to pay one-third of said notes and mortgage.
The documentary evidence, not stating the various instruments in chronological order, was as follows: March 17, 1887, a contract by plaintiff and wife to convey to Diether; June 7 1887, the conveyance from plaintiff and wife to Diether; May 28, 1887, a contract by Diether to convey to Frank K. Bacon, (not defendant Bacon,) in which it is stipulated that the vendee shall assume said mortgage; June 15, 1887, the conveyance from Diether and wife to Frank K. Bacon, by the terms of which the grantee assumed and agreed to pay the mortgage; on same date a conveyance from Frank K. Bacon and wife to the defendants Rogers and Bacon, by which the real estate is conveyed subject to the mortgage, but which the grantees do not assume to pay; January 28, 1888, a conveyance from defendants Rogers and Bacon to the defendant Flandrau of an undivided one-third of the real estate, by the terms of which the grantee assumed and agreed to pay one-third of the mortgage.
The instruments do not support plaintiff's claim that, upon the conveyance to them, the defendants Rogers and Bacon assumed to pay his notes and mortgage. But the plaintiff claims that, notwithstanding what appears by the instruments, the contract of sale by Diether -- the oral agreement which preceded the written contract to...
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