Reynolds v. Fleming

• Decision Date: 20 June 1890
• Parties: REYNOLDS v FLEMING ET AL.
• Court: Minnesota Supreme Court

43 Minn. 513

45 N.W. 1099

REYNOLDSvFLEMING ET AL.

Supreme Court of Minnesota.

June 20, 1890.

(Syllabus by the Court.)

1. The interest of a vendee under a subsisting contract for the sale of land, under which he has entered and made improvements and paid part of the purchase money, is subject to levy and sale upon execution.

2. And where, in such case, the land is levied on and sold as his property, the sale is not void because his specific interest therein as vendee is not designated, but the certificate of sale will include the debtor's interest, and the purchaser will succeed to his rights under the contract.

Appeal from district court, Douglas county; SEARLE, Judge.

Geo. L. Treat, (Knute Nelson, of counsel,) for appellant.

H. Jenkins, for Mary McDonough Fleming.

VANDERBURGH, J.

On the 15th day of June, 1876, Theresa Hicks, being then the owner of the village lot in controversy, bargained the same to Richard Fleming, and executed on that day a bond for a deed therefor, by the terms of which she obligated herself to convey the land to him upon being paid the purchase price named, $75 cash, and the balance, $50, in installments, payable in one and two years. It is found that Fleming thereupon entered into possession of the premises under the bond, built a house and resided thereon with his wife, Mary Fleming, until the spring of 1883, when they both removed from the premises, and have not since occupied the same themselves; but the possession was by him turned over to her, and she has since had the sole beneficial use and possession thereof by her tenants, and has received the rents by his consent. Defendant Richard Fleming did not pay any installments of the purchase money after the first, and the obligee in the bond did not at any time take any action to enforce or declare the bond void. On the contrary, the evidence shows that the same was recognized as a subsisting obligation until after the recovery of the plaintiff's judgment mentioned in the findings. The court also finds that the defendants held possession under the bond. Having entered and made the improvements by the consent of the vendor, and in recognition of the contract, the continued occupancy thereunder, by the consent of Hicks, was an affirmance of the contract. And the title and interest of the vendee could not be forfeited or extinguished until after reasonable notice; and the evidence shows that the vendor so understood it. While it is found that he surrendered the possession to his wife, yet there was no transfer of his interest to her; it is evident that he put her in charge of the property, and allowed her to collect the rents. This did not divest his interest or possessory rights in the property, or prevent the lien of plaintiff's judgment from attaching, if it otherwise would have done so. Plaintiff's judgment against the defendant Richard Fleming was recovered on the 26th day of October, 1885, while the original bond was still in force, and the sale of the premises upon execution against him was made on the 11th day of December, 1886. An attachment had previously issued in the same action, which was levied on the premises as the property of Richard Fleming, September 14, 1885. Subsequent to this levy and the sale upon execution, the premises were conveyed to the defendant Mary Fleming, she having paid the balance of the consideration money and interest due to Hicks, and at the same time the defendant Richard delivered to the latter a release of his interest in the property. Upon these facts two questions are presented: (1) Whether the interest of Richard Fleming was subject to levy and sale upon execution; and (2) whether the levy upon and sale of the lot upon execution, as made by the sheriff, passed such interest to the purchaser, so as to place him in the shoes of Fleming, and to entitle him to complete the purchase and to demand a deed under the bond.

Whether the vendee's interest under a land contract may be sold upon execution depends upon statute regulation. In a majority of the states, the general rule...