Smith v. Dennett

• Decision Date: 01 January 1870
• Citation: 15 Minn. 59
• Parties: XENOPHON SMITH v. H. S. DENNETT.
• Court: Minnesota Supreme Court

Page 59

15 Minn. 59

XENOPHON SMITH

v. H. S. DENNETT.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, Hennepin county.

Allis, Gilfillan & Williams, for appellant.

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E. S. Jones, for respondent.

BERRY, J.

The complaint alleges that on the fourth day of June, 1858, Russell became owner in fee-simple and seized of two certain town lots in Minneapolis; that on or about the first day of October, 1859, he for a valuable consideration duly made, executed, and delivered a deed with full covenants of warranty, whereby he sold and conveyed all his right, title and interest in said lots to Baker; the deed being duly recorded October 3, 1859. Through sundry subsequent conveyances Baker's right, title, and interest in the lots were transferred to the plaintiff. The complaint further alleges that on or about the twenty-second day of December, 1858, and prior to said conveyance to Baker, "Russell wrongfully, unlawfully, and fraudulently, with intent to defraud subsequent bona fide purchasers in good faith, granted by deed the aforesaid lands and premises to one H. S. Dennett, which said deed was recorded in the office of register of deeds in and for Hennepin county, state of Minnesota, on the twenty-second day of April, A. D. 1859; * * * that said deed from said Russell to defendant, Dennett, was made and executed without the knowledge, consent, or approval of said defendant, and the consideration therein expressed of $1,000 was wholly and entirely false; that no good, valuable, or any lawful consideration of any kind was ever paid by defendant or received by said Russell in payment for said grant of land and premises; that said defendant, Dennett, never at any time was seized or ever entered into actual possession of said lots, * * * or ever has exercised any of the rights of ownership over said * * * premises." The plaintiff also alleges that Baker was a bona fide purchaser for a valuable consideration; that he, the plaintiff, purchased without knowledge of the pretended transfer to the defendant; that he was a bona fide purchaser for a valuable consideration, and believed at the time of his purchase that he was acquiring a title in fee-simple free from any cloud or defect.

The plaintiff asks for the removal of the cloud cast, as he claims, upon his title by the record of the deed to defendant.

The appeal in this case is taken from a judgment entered upon defendant's default to appear in the court below. The defendant (who appeals) insists that the complaint does not state facts sufficient to constitute a cause of action.

There are obvious reasons why an objection of this kind, interposed after judgment for the first time, especially when the judgment has been entered upon default, should not be favored; and these reasons are still stronger when such objection is first made upon an appeal to this court. Karns v. Kunkle, 2 Minn. 316, (Gil. 268.) As was remarked in McArdle v. McArdle, 12 Minn. 106, (Gil. 57:) "When the objection is not interposed until after the issue is made up and the cause called for trial, or until after verdict and judgment, it should not be allowed to prevail, if the proceedings can be sustained by any reasonable intendment." See, also, Holmes v. Campbell, 12 Minn. 225, (Gil. 141.) Such objection, when originally made upon appeal, should, we think, be treated with less indulgence than a motion in arrest of judgment, to which it bears some analogy, for the latter is presented in the first instance to the inferior court, where the error complained of occurred, and where it may be corrected with comparatively little expense and inconvenience to parties litigant. But a motion in arrest of judgment for...