State Bank of Milan v. Sylte

• Decision Date: 06 February 1925
• Docket Number: No. 24442.,24442.
• Citation: 162 Minn. 72,202 N.W. 70
• Parties: STATE BANK OF MILAN v. SYLTE.
• Court: Minnesota Supreme Court

202 N.W. 70

162 Minn. 72

STATE BANK OF MILAN v. SYLTE.

No. 24442.

Supreme Court of Minnesota.

February 6, 1925.

Appeal from District Court, Chippewa County; G. E. Qvale, Judge.

Action by the State Bank of Milan against George S. Sylte. From judgment for plaintiff, defendant appeals. Affirmed.

Theodore S. Slen and Ewing & Acton, all of Madison, for appellant.

Bert O. Loe, of Granite Falls, for respondent.

STONE, J.

This action involves a farm and defendant appeals from a judgment, the effect of which is to determine that the relationship between plaintiff and himself is that of vendor and vendee rather than mortgagor and mortgagee. The facts seem to be stated fully by the findings and the evidence is not before us.

Discussion of the facts is not called for. The conclusion reached below that the parties were vendor and vendee rather than mortgagor and mortgagee cannot be assailed in the absence of the evidence. The findings sustain the conclusion, as a matter of law, that the controlling contract was one of sale and for a conveyance and not a mortgage. There is no claim of fraud, overreaching, or other inequitable conduct on the part of plaintiff.

The claim that the mortgage registry tax has not been paid on the contract in question is not now open to defendant because it is an obvious afterthought. The point was not even suggested, so far as the record shows, until after the trial, and then only by an objection to the entry of final judgment.

The one issue requiring discussion arises because, having determined the character of the contract and the amount due from defendant to plaintiff, the trial court by an interlocutory judgment gave defendant six months wherein to make payment and take his deed. He did not do so and, in consequence, a final judgment followed, barring him from further right or interest, and quieting title and the right to immediate possession in plaintiff. In other words there has been an equitable strict foreclosure of defendant's rights as vendee. There has been no attempt to cancel his contract by notice under our statute.

The argument for defendant is that the statute (section 8081, G. S. 1913 [section 9576, G. S. 1923]) provides for the vendor a remedy of cancellation and strict foreclosure, which is exclusive of all other methods including the action in equity. The statute, so far as material, reads as follows:

"When default is made in the conditions of any contract for the conveyance of real estate or any interest therein, whereby the vendor has a right to terminate the same, he may do so by serving upon the purchaser, his personal representatives or assigns, * * * a notice specifying the conditions in which default has been made, and stating that such contract will terminate thirty days after the service of such notice unless prior thereto the purchaser shall comply with such conditions and pay the costs of service. Such notice must be given notwithstanding any provisions in the contract to the contrary, and shall be served * * * in the same manner as a summons in the district court. * * * If within the time mentioned the person served complies with such conditions and pays the costs of service, the contract shall be thereby reinstated; but otherwise shall terminate."

Of course, if by his own act and unaided by litigation a vendor desires to cancel, he must follow the statute. Lamprey v. St. Paul & C. Ry. Co., 89 Minn. 187, 94 N. W. 555; Finnes v. Selover et al., 102 Minn. 334, 113 N. W. 883; Chapman v. Propp, 125 Minn. 447, 147 N. W. 442; Mathwig v. Ostrand, 132 Minn. 346, 157 N. W. 589; Needles v. Keys, 149 Minn. 477, 184 N. W. 33; Ballard v. Friedman, 151 Minn. 493, 187 N. W. 518. That result follows from the obvious purpose of the statute, and is referable particularly to the requirement of notice, "notwithstanding any provision in the contract to the contrary."

It does not follow, however, and we have never held, that the statute is exclusive of the vendor's right of action against a defaulting vendee for specific performance on the one hand, or on the other, for a judicial termination of the...