154 Minn. 159 | Minn. | 1923
Action at law to recover the first instalment due on a contract for the purchase of land. A verdict was directed for the plaintiffs. The defendant appeals from an order denying his alternative motion for judgment or a new trial.
On April 6, 1921, the plaintiffs entered into a contract with the defendant whereby they sold and agreed to convey a lot in Minneapolis for $8,250, of which $1,000 was paid in cash, $500 was to be paid on October 6, 1921, and $500 each sis months thereafter until the entire purchase price was 'paid, together with interest on deferred payments. The defendant was given possession. He became the equitable owner. The legal title remained in the plaintiffs as security for the deferred payments. The plaintiffs were given the right to terminate the contract, as provided by the statute, that is, on 30 days’ notice. The action is to recover the $500 due on October 26, 1921.
It is the contention of the defendant that the contract to give a deed and to pay the agreed instalments were dependent, and that there could be no recovery of the instalments in an action at law, the plaintiffs’ remedy being an action for damages for the breach or an action for specific performance. He relies upon Freeman v. Paulson, 107 Minn. 64, 119 N. W. 651, 131 Am. St. 438, and other cases. See 3 Dunnell, Minn. Dig. § 10084. The plaintiffs claim that the covenants to pay, unless it be the covenant to pay the last instalment, are independent of the covenant to make a deed, and that recovery can be had for each instalment as it matures. This
The registration tax had not been paid upon the contract when the trial commenced. Objection Avas made to its introduction in evidence. The plaintiffs paid the tax, the treasurer’s receipt was indorsed thereon, and the contract was received in evidence. It Avas not countersigned by the county auditor as contemplated by G. S. 1913, § 2305. This is unimportant. The important thing is that the tax be paid. Besides, the only objection made to the introduction of the certificate was that the taxes could not be paid at the trial, after objection, and the contract thus be made admissible in evidence.
Until the payment of the tax the contract is in a state of dormancy. It cannot be recorded nor received in evidence and no substantial right can be built upon it. The effect of the nonpayment of the tax had consideration in Sittauer v. Alwin, 151 Minn. 508, 187 N. W. 611; John v. Timm, 153 Minn. 401, 190 N. W. 890; Engenmoen v. First State Bank, 153 Minn. 409, 190 N. W. 894; and Lowagie v. Haney, 153 Minn. 436, 190 N. W. 892. They are consistent with and perhaps foreshadow the holding, which we now make, that in an action such as this payment of the tax may be made at the trial, though objection is made, and the contract received in evidence. This holding is not inconsistent with First State Bank of Boyd v. Hayden, 121 Minn. 45, 140 N. W. 132, or Engel v. Mahlen, 153 Minn. 1, 189 N. W. 422, where the holding was that a notice to terminate such a contract given before the payment of the tax is ineffective.
The defendant makes- some claim that the plaintiffs’ title was defective.
In 1864 a deed was made by the then record owner to “Henry N. Weiming of the city of Cincinnati, county of Hamilton and state
Order affirmed.