Thompson v. Ellenz
| Decision Date | 19 July 1894 |
| Docket Number | 8794 |
| Citation | 59 N.W. 1023,58 Minn. 301 |
| Parties | A. W. Thompson v. John Ellenz et al |
| Court | Minnesota Supreme Court |
Argued June 29, 1894
Appeal by defendants, John Ellenz, J. M. Sprague and others, from an order of the District Court of Houston County, Jno. Whytock J., made January 19, 1894, denying their motion for a new trial.
The north half of the northeast quarter of Section five, T. 102 R. 6, in Houston County, was with other lands on March 3 1857, granted by the United States to Minnesota in aid of the construction of railroads. The State on December 1, 1866 granted this land to the Southern Minnesota Railroad Company and it by three separate and successive deeds of trust conveyed the land to Samuel B. Ruggles and Albon P. Man, trustees, to secure the payment of its bonds for $ 1,000,000. The last of these deeds dated March 13, 1868, authorized the trustees to sign, seal, execute and deliver, in the name and as the act of the Company, contracts for the sale and deeds of conveyance of the lands, or any piece or part thereof, and reinvest the proceeds to meet the bonds at their maturity. On March 22, 1880, the Railroad Company and the trustees, acting by M. Conant, Commissioner, in behalf of both, contracted with Nicholas Ellenz to sell to him the above mentioned eighty acre tract for $ 559.59. He paid down $ 225.78, went into possession and agreed to pay the balance in five annual installments on December 1st in that and the four next succeeding years, with interest annually on all sums unpaid, and to pay the taxes. Ruggles died and Alerick H. Man was on June 15, 1883, duly appointed trustee in his place. He and Albon P. Man on September 26, 1885, conveyed this land and assigned the Ellenz debt and contract to N. C. Frederickson. He on April 20, 1886, deeded the land and assigned the debt and contract to C. D. Kendrick and Henry Herman of Milwaukee, Wis. On November 23, 1889, Kendrick made an assignment of all his property to Herman in trust for his creditors pursuant to the law of that state. Herman accepted the trust and on April 26, 1890, as such assignee, deeded Kendrick's interest in the land and assigned his interest in the Ellenz debt and contract to John W. Cary. He and Herman on May 31, 1892, jointly deeded the land and assigned the debt and contract to plaintiff. Nicholas Ellenz failed to pay as agreed and on December 1, 1891, he died intestate in Houston County, leaving defendants, Gertrude Ellenz, his widow, John Ellenz and six others, his children, his heirs at law. Plaintiff offered to deed the eighty acres to the heirs or to whomsoever they might designate on being paid the balance due on the contract. They refused, nor would they agree to pay the balance due at any future date or to surrender possession of the land. On May 16, 1892, plaintiff tendered them a deed and demanded $ 501.80, the balance then due on the contract, but was refused and he brought this action to cancel the contract for nonperformance and to obtain possession of the property. J. M. Sprague held a mortgage on the land given by Ellenz and was made a defendant with the heirs. He demurred to the complaint, but the heirs answered denying plaintiff's title but did not ask to be allowed to pay and have a deed in case he established his title. Sprague's demurrer was overruled, and he without answering took part with the other defendants in the trial of the issues raised by their answer. These facts were established on the trial and the court ordered judgment for plaintiff. The defendants including Sprague moved for a new trial of the issues. Being denied they appeal.
These being all the assignments of error worthy of consideration, the order appealed from should be affirmed.
Harries & Duxbury, for appellants.
Before the Ellenz contract can be terminated notice of forfeiture must be served and reasonable opportunity given the defendants to perform. Quinn v. Olson, 34 Minn. 422; Higbie v. Farr, 28 Minn. 439; O'Connor v. Hughes, 35 Minn. 446; Coles v. Shepard, 30 Minn. 446; Getty v. Peters, 82 Mich. 661.
As to J. M. Sprague it was an abuse of discretion to overrule the demurrer and direct judgment against him without leave to answer.
The act of March 3, 1857, did not ipso facto pass the title of this land to Minnesota. It provided that upon the location of a certain railroad certain lands should pass. The certificate of the Land Commissioner certifying the land to Minnesota would be the proper evidence of the transfer from the United States. The plaintiff offered no evidence to show that the title to this land passed from the United States to the State of Minnesota. Musser v. McRae, 38 Minn. 409; Schulenberg v. Harriman, 21 Wall. 44; Knevals v. Hyde, 6 F. 651.
The next flaw in plaintiff's proof of title is found in the deed from the State of Minnesota by its governor to the Southern Minnesota Railroad Company. The description in the deed is "N. N.E. Section 5, Town 102, Range 6." This means nothing and this court has said, "It would never do to permit any explanation to show what such a description meant." Keith v. Hayden, 26 Minn. 212.
No title passed to Ruggles and Man by the three instruments given them by the Railroad Company, and no title could be acquired under these instruments except by foreclosure.
Nicholas Ellenz was dead and the contract with him was not acknowledged. There was no evidence given of his signature and it does not prove itself. Nor is there any evidence of authority in M. Conant to act for either of the vendors. Executed as this contract is, if the signature was proven, the contract would be that of M. Conant and not that of the Southern Minnesota Railway Company or of Albon P. Man and Samuel B. Ruggles. Tiedeman Real Prop., § 805.
Kendrick's interest could not be passed by a deed of assignment for the benefit of creditors executed in the State of Wisconsin. Such a deed could have no effect to transfer real estate in this state. McClure v. Campbell, 71 Wis. 350; Filkins v. Nunnemacher, 81 Wis. 91; Kelly v. Crapo, 45 N.Y. 86.
A deed of assignment for the benefit of creditors only passes real estate in this state when filed in the office of the Register of Deeds in and for the county where the real estate is situated. Laws 1887, ch. 206. And at the date of the transfer from Herman and Cary to plaintiff the deed of assignment was not recorded in Houston County where the land in controversy is located.
Gray & Thompson, for respondent.
A vendee in possession under a contract for a sale of real estate who has made improvements on the land and paid part of the purchase money, but who is in default as to the remainder and who continues the default, notwithstanding the vendor has tendered the deed and demanded payment, and who does not excuse his default nor offer to make it good, nor ask for a specific performance, is not entitled to be retained in possession against the legal right of the vendor. Williams v. Murphy, 21 Minn. 534; Merrill v. Dearing, 22 Minn. 376.
In cases where the vendee fails to comply with the conditions of the contract, the vendor may maintain an action in ejectment without alleging or proving previous demand of possession or notice to quit. Baker v. Gittings, 16 Ohio 485; Jackson v. Miller, 7 Cow. 747; Wright v. Moore, 21 Wend. 229; Gregg v. Von Phul, 1 Wall. 274.
The defendants cannot criticize the deed from the state. It is the common source of title. They took possession under the contract to Ellenz and cannot dispute the vendor's title. This estoppel extends to those claiming under the vendee, and a purchaser from him cannot set up want of title, or an outstanding title, against the vendor. Bowers v. Keesecker, 14 Ia. 301; Gudger v. Barnes, 4 Heisk. 570; Corder v. Dolin, 4 Bax. 238; Waggener v. Lyles, 29 Ark. 47; O'Brien v. Wetherell, 14 Kan. 616; Jackson v. Ayers, 14 Johns. 223; Jackson v. Thompson, 6 Cow. 178; Jackson v. Walker, 7 Cow. 636.
The objection to the admission in evidence of the contract with Ellenz was that it was incompetent, irrelevant and immaterial. This did not call attention to want of proof of Ellenz's signature, he being dead. A party wishing to rely on the objection that the signature to an instrument is not proved should make the objection specifically. Schwartz v. Germania Life Ins. Co., 21 Minn. 215.
Canty, J. Buck, J., absent, took no part.
Plaintiff brought an action of ejectment against defendants for the possession of the land in question, alleging that on the 22d day of March, 1880, "the Southern Minnesota Railroad Company, by its trustees Samuel B. Ruggles, and Albon P. Man, was the owner of this land, and on that day executed and delivered a contract to Nicholas Ellenz, which is set out by copy, and purports to be an agreement by the railway company, "acting as well on its own behalf as on behalf of Samuel B. Ruggles and Albon P. Man, trustees under a special land trust created by said company, of the first part," and Ellenz, of the second part, by which the first parties agree to convey to Ellenz the land in question for the sum of $ 559.59, and stating that he had paid in cash $ 225.78, and that he agreed to pay the interest on December 1st each year, and $ 85 of the principal December 1, 1880, and $ 83 on December 1st of each year thereafter until December 1, 1884. The contract concludes: ...
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