Trentor v. Pothen

• Decision Date: 08 June 1891
• Citation: 46 Minn. 298
• Court: Minnesota Supreme Court
• Parties: GEORGE C. TRENTOR <I>vs.</I> NICHOLAS POTHEN, Intervenor.

Page 298

46 Minn. 298

GEORGE C. TRENTORvs.

NICHOLAS POTHEN, Intervenor.

Supreme Court of Minnesota.

June 8, 1891.

Plaintiff brought this action in the district court for Ramsey county, on January 22, 1889, against one Lue V. Gregson, for an accounting as to an alleged partnership transaction growing out of the erection of a double dwelling-house on a lot in St. Paul, so built that the centre partition between the two dwellings was upon the line between the north half of the lot (the record title to which was in plaintiff) and the south half, (the record title to which was in defendant,) for a dissolution of the alleged partnership, and asking that the amount found due plaintiff on the accounting should be declared a specific lien on the entire lot. The defendant answered, putting in issue many of the averments of the complaint. Afterwards, and on February 7, 1889, Gregson conveyed the south half of the lot to Nicholas Pothen, who applied and was admitted to intervene and defend, and who, in his answer, pleaded, among other things, that he was a bona fide purchaser. The action was tried by Kelly, J., who found, among other facts, the partnership agreement alleged in the complaint, and that on May 2, 1888, plaintiff had brought a former suit in the same court, alleging the same matters and praying the same relief as in this action, and had on the same day filed a notice of lis pendens, which has never been released or discharged of record, although that action was dismissed of record prior to the commencement of this. He also found that plaintiff was in exclusive possession of the entire lot, and had been in such possession from a time prior to the bringing of the first suit; and that the attorney for the defendant in the first action was the intervenor's legal adviser and examined the title for him at the time of his purchase from Gregson; and that the intervenor, when making the purchase, knew that the dwelling-house was occupied by the plaintiff, and had been built by plaintiff and Gregson jointly, and was claimed by plaintiff to be jointly owned by them, and knew of the unsettled accounts between plaintiff and Gregson relating to the erection of the dwelling-house as a common enterprise. Judgment was ordered and entered for plaintiff for the relief prayed in the complaint, and directing a sale of the south half of the lot to satisfy the amount adjudged due the plaintiff from Gregson. From this judgment the intervenor appealed.

Ferdinand Barta, for appellant.

Johns, Michael & Johns, for respondent.

MITCHELL, J.

The brief for the appellant intervenor is somewhat obscure and disconnected in its statements, but we do not understand counsel to deny that plaintiff would be entitled to a lien on these premises as against the defendant or his grantees with notice; but his contention is that his client is protected as a bona fide purchaser for value. Consequently the only question necessary to be considered is whether the evidence justified the court in finding that the intervenor purchased with notice of plaintiff's rights. Nothing can be claimed from the notice of lis pendens filed in a former suit which was dismissed before plaintiff purchased. It was only constructive notice of the pendency of the action in which it was filed. The court found that plaintiff was in possession of the premises when intervenor purchased them, and that this should have put him upon inquiry. The record purports to contain all the evidence, and while we find evidence that plaintiff was in possession of his own premises, (the north half of the lot,) we are unable to find a particle...