Union Investment Company v. Abell
| Decision Date | 11 February 1921 |
| Docket Number | 22,091 |
| Citation | 181 N.W. 353,148 Minn. 229 |
| Parties | UNION INVESTMENT COMPANY v. ASHLEY J. ABELL AND ANOTHER |
| Court | Minnesota Supreme Court |
Action in ejectment in the district court for Hennepin county and to recover $100 per month since February 13, 1920, until restoration of the premises. The case was tried before Dickson, J., who made findings and directed judgment in favor of defendant Harris. From an order denying its motion for a new trial, plaintiff appealed. Affirmed.
Attachment -- bare legal title of vendor held in trust for vendee.
1. Where a vendor has received the entire purchase price and has executed and delivered a deed under which the purchaser has taken possession of the property, but which is inoperative because the name of the grantee has not been inserted therein, the vendor retains no attachable interest in the property, but merely holds the bare legal title as trustee for the purchaser, and a creditor who has notice of the rights of the purchaser cannot acquire a lien on the property under a writ of attachment against the vendor.
Possession of tenant notice to attaching creditor.
2. The tenant of the vendor, having attorned to the purchaser before the attachment was levied, his possession was notice to the attaching creditor of the rights of the purchaser.
Redemption from foreclosure of mortgage by attaching creditor void.
3. The attaching creditor was not entitled to redeem from the foreclosure of a prior mortgage as a creditor having a lien and his attempt to do so gave him no interest in the property, and his subsequent mortgage to plaintiff gave plaintiff no interest therein.
Immaterial question.
4. Whether the executory contract between the vendor and the purchaser could have been enforced is immaterial as it has been performed.
Attachment -- abandonment of proceeding.
5. Where a creditor files a complaint and causes an attachment to be issued and levied on the real estate of a nonresident but fails to serve the summons or take any further steps in the action, and a year and nine months later commences a new action against the same nonresident, on the same cause of action, and levies a new attachment on the same real estate, and prosecutes this action to judgment, he is deemed to have abandoned his first action and to have waived any lien under his first attachment.
Jesse Van Valkenburg, for appellant.
Daniel W. and D. S. Doty, for respondent.
This is an action in ejectment and involves the title to the property known as number 820 on Laurel avenue in the city of St. Paul. The trial court found that defendant Harris is the owner and entitled to the possession of the property, that plaintiff has no right, title or interest therein, and directed judgment in favor of defendant Harris. Plaintiff appeals from an order denying a new trial.
Prior to the transactions hereinafter mentioned, Emma L. Plunk was the owner of the property subject to two mortgages. She resided with her husband, Benjamin F. Plunk, in the state of Montana and rented the property to defendant Abell. On December 12, 1918, she and her husband entered into a written contract with one John J. Scott, by which Scott agreed to convey to them a farm in Montana, in consideration of which they agreed to pay Scott the sum of $3,000 and to convey to him the above mentioned property, subject to the mortgages thereon. This contract was fully performed by both parties, except that, at Scott's request, the name of the grantee was not inserted in the deed delivered to him for the property in controversy. On April 1, 1919, each party took possession of the property received from the other, and thereafter Abell became the tenant of Scott by agreement between them.
On October 26, 1918, the second mortgage was foreclosed and the property was sold thereunder to Helen A. Harris, the holder of the mortgage and a daughter of defendant Harris. On February 8, 1919, the first mortgage was foreclosed and the property was sold thereunder to the mortgagee, who assigned the certificate of foreclosure sale to defendant Harris before the expiration of the year for redemption.
On October 25, 1919, George W. Getts caused an attachment issued against the property of Emma L. Plunk and Benjamin F. Plunk to be levied on this property. Claiming a lien under this attachment, he redeemed, or attempted to redeem, from the foreclosure of the second mortgage, and, on October 29, 1919, received the usual sheriff's certificate of redemption, but Helen A. Harris, the holder of the certificate of sale, refused to accept the redemption money. On December 19, 1919, Getts executed a mortgage on the property to plaintiff. On February 13, 1920, plaintiff, claiming a lien under this mortgage, redeemed, or attempted to redeem, from the foreclosure of the first mortgage, and received the usual sheriff's certificate of redemption, but defendant Harris, the holder of the certificate of sale, refused to accept the redemption money.
Plaintiff states that the questions presented are: (1) Did Emma Plunk have an attachable interest in the property when the attachment was levied on October 25, 1919? (2) Did the attachment give Getts the right to redeem from the foreclosure of the second mortgage? (3) If Emma Plunk in fact had no attachable interest in the property, did Getts, by his attachment, acquire an interest therein under the registry laws which gave him the right to redeem? We answer each of these questions in the negative.
At the time the attachment was levied, the title to the property stood of record in the name of Mrs. Plunk. But in fact she had sold the property and had received the full purchase price for it, and the purchaser was in possession by his tenant, Abell. She had also executed a warranty deed and delivered it to the purchaser for the purpose of conveying the title to him, but this deed was ineffective, for the reason that it did not contain the name of the grantee. While the purchaser had implied authority to insert the name of the grantee and thus make the deed operative, he had not done so, and consequently the legal title still remained in her. Board of Education v. Hughes, 118 Minn. 404, 136 N.W. 1095, 41 L.R.A.(N.S.) 637; Werntz v. Bolen, 135 Minn. 449, 161 N.W. 155; Schauble v. Hedding, 138 Minn. 187, 164 N.W. 808.
She had no beneficial interest in the property, however, but merely held the bare legal title as trustee for the purchaser. Where a vendor who retains the legal title no longer has any beneficial interest in the property, his creditors can acquire no lien thereon, unless by virtue of the registry laws. Minneapolis & St. L. Ry. Co. v. Wilson, 25 Minn. 382; Welles v. Baldwin, 28 Minn. 408, 10 N.W. 427; Baker v. Thompson, 36 Minn. 314, 31 N.W. 51; Berryhill v. Potter, 42 Minn. 279, 44 N.W. 251; Fleming v. Wilson, 92 Minn. 303, 100 N.W. 4. The case last cited is much like the case at bar. There two landowners agreed to exchange tracts of land. The deeds of conveyance were not executed, but each took possession of the tract to be conveyed to him by the other. The two tracts were treated as of equal value so that no part of the purchase price remained unpaid. It was held that a subsequent judgment against one of the parties did not attach as a lien to the tract which he had agreed to convey to the other.
Under the decisions above cited, it is clear that Mrs. Plunk had no attachable interest in the property at the time Getts attempted to levy his attachment, and consequently that he acquired no lien thereon, unless the facts brought him within the provisions of the registry laws.
Although the title to the property stood of...
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