Nolan v. Greeley

• Decision Date: 09 December 1921
• Docket Number: 22,449
• Parties: JOHN NOLAN v. LISTON Q. GREELEY
• Court: Minnesota Supreme Court

185 N.W. 647

150 Minn. 441

JOHN NOLAN v. LISTON Q. GREELEY

No. 22,449

Supreme Court of Minnesota

December 9, 1921

Action in the district court for St. Louis county to restrain defendant from proceeding with the cancelation of a certain contract. From an order, Magney, J., granting a restraining order except the part which read: "But it is hereby provided and understood that the defendant Greeley may accept payments under said contract for any month subsequent to the months in issue without thereby waiving any other right now had in this action," defendant Greeley appealed. Reversed.

SYLLABUS

Vendor and purchaser -- statutory notice to terminate contract -- injunction.

The proceeding for a cancelation of a land contract under G.S 1913, § 8081, by serving, upon default, a of termination, is in the nature of a statutory strict foreclosure. The proceeding is in pais. If there is no default, it is without effect. The time for removing the default commences running when the notice is served. After the service of the notice the vendee cannot have a temporary injunction vacating the service or suspending the effect of the notice, and restraining the proceeding, under the facts stated in the opinion, upon the ground that he is not in default.

D. J Erickson and H. J. Grannis, for appellant.

G. A. E. Finlayson, for respondent.

OPINION

DIBELL, J.

The defendant appeals from an order granting a temporary injunction.

The plaintiff Nolan was the vendee in a contract for the purchase of a tract of land in Duluth and the defendant Greeley was the vendor. The purchase price was payable in monthly installments. The contract had the usual provisions for cancelation and forfeiture in case of default.

Nolan paid the amounts due to the Western Development Company, his agent, for the seven months from October, 1920, to April, 1921. The company claims it paid these amounts to Greeley by applying them on a note which he was owing to the company under such circumstances as to constitute payment. Therefore the plaintiff claims there was no default and no right in the defendant to cancel the contract. This is the issue.

On April 19, 1921, Greeley gave plaintiff notice of cancelation in accordance with G.S. 1913, § 8081, which provides that, if defaults are not removed within 30 days after notice served, the contract shall terminate. A few days later the plaintiff brought an action for an injunction, and on May 3 an order was made granting a temporary injunction. The injunction granted this relief:

"It is ordered, that upon the filing hereof with the clerk of this court and a bond in the penal sum of $250.00, with sureties approved by the court, that an injunction forthwith issue, granting unto plaintiff the following relief until the further order of the court, to-wit:

"1. The service of said notice of cancelation of said contract, be and the same is hereby in all things vacated and set aside.

"2. That the defendant, Greeley, is hereby restrained from foreclosing and canceling said land contract and all proceedings in the matter of said cancelation are hereby stayed.

"3. That said Register of Deeds is hereby restrained from receiving, filing or recording said notice, any proof of service thereof and affidavit of default of plaintiff in compliance therewith or any other paper relating to such attempted cancelation.

"But it is hereby provided and understood that the defendant, Greeley, may accept payments under said contract for any month subsequent to the months in issue without thereby waiving any other right now had in this action."

Under the contract Nolan was the equitable owner and Greeley held the legal title as security for the unpaid payments. Their relation was in the nature of that of mortgagor and mortgagee. The statutory proceeding for the cancelation of a land contract is in the nature of a statutory strict foreclosure. The proceeding is...