Benjamin v. Savage, 154 Minn. 159

Benjamin v. Savage

154 Minn. 159 | Minn. | 1923

Dibele, J.

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 *161is the correct view. Where there are numerous instalments, and the deed is to be given when the last one is paid, the covenant to pay instalments, except the last one, and the covenant to convey, are independent. Loveridge v. Coles, 72 Minn. 57, 74 N. W. 1109; Lindstrom v. Helk, 139 Minn. 100, 165 N. W. 873; Noyes v. Brown, 142 Minn. 211, 171 N. W. 803. The situation shows such to be the intention.

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 *162of Ohio.” On March 25, 1869, “Henry N. Wenning and Caroline Wenning, his wife, of the city of Cincinnati and state of Ohio,” conveyed the property to one through whom the plaintiffs trace title. At the time of the contract between the plaintiffs and the defendant this deed had been of record for more than 50 years. Many conveyances depend upon it. No adverse title has been asserted. The plaintiffs were in possession when they made the sale to the defendant and they delivered him possession. On March 17, 1921, the plaintiffs and the defendant entered into an earnest money contract which provided for the furnishing of an abstract showing title and the execution of a contract. An abstract was furnished. The contract contemplated by the earnest money contract, that here involved, was accepted, and possession was taken and is maintained by the defendant under it, and he collected rent. The defendant is not now, when sued for an instalment of the purchase price, in position to claim the defect in the title upon which he relies; and, if we go to the merits, his claim is not substantial.

Order affirmed.