20 Minn. 165 | Minn. | 1873
By the Court.
In May, 1867, Hotchkiss being the owner of the land to which this action relates, executed to Sarah A. Shilling, wife of John Shilling, a bond for the conveyance of the same to her upon payment of her two notes given for the purchase price. She went into possession, and made large payments upon the notes. September 11,| 1868, Bennett recovered a judgment against John Shilling, and February 23d, 1869, filed a creditor’s bill against him andl his wife, charging that the purchase evidenced by the bondl and notes, was in fact made by and for the benefit of Johnl Shilling in his wife’s name, and that all the payments were! made with said John’s money, the object being to prevent Bennett from collecting the demand upon which the abovej mentioned judgment was recovered.
The present action was commenced in July, 1871, by Bennett against Hotchkiss and the Shillings, to compel Hotchkiss to account as to what had been paid him under the contract aforesaid, and to compel him to convey to Bennett upon payment of whatever upon such accounting might be found due. This case was tried by the court below, and upon the trial plaintiff introduced evidence to establish the foregoing fabts, and some others which do not seem to possess any material importance, and also called upon the stand Isaac Atwater, whose testimony, so far as was important, was directed to the question whether Hotchkiss had notice of the suit of Bennett against the Shillings, and whether the decree of cancellation in the case of Hotchkiss against Mrs. Shilling was obtained by fraud and collusion. At the close of plaintiff’s ;estimony, defendant, without offering any evidence upon his Dart, moved that the action be dismissed, and upon advise-Hnent the motion was granted. Plaintiff moved for a new Hrial upon the grounds that the dismissal was against law, and Hvas not justified by the evidence.
Whether Hotchkiss had actual notice of the pendency ofl the proceedings taken by Bennett against the Shillings, was a I question of fact in the court below, in the decision of which] adversely to the plaintiff, we cannot say that there was error.I
Hotchkiss is then to be assumed to have had no notice of the proceedings in Bennett’s action against the Shillings, and| to have recovered his judgment cancelling the bond, in igno-, ranee of any claim upon Bennett’s part to the premises in con-j troversy. The charge that the decree of cancellation was ob-l tained by fraud and collusion between Hotchkiss and the Shillings, the design of which ivas to chouse Bennett out oil his debt and claim upon the land, is also by the dismissal oi
Hotchkiss then must be assumed to have had no notice, actual, or constructive, of Bennett’s proceedings against the Shillings, and to have recovered his judgment of cancellation fairly, and not fraudulently, or collusively. Such being the case, we .perceive no reason why Hotchkiss should be affected by, or bound to regard any rights which Bennett acquired by his suit against the Shillings. If we are right in this position, it follows, that'the decree of.cancellation has wiped out all the rights and interests of all persons under the bond, and has restored Hotchkiss to a title in fee to the premises ; a title cleared of any obligation arising from the execution of the bond, or any rights derived therefrom, or from anything which has been done under the bond. If this is so, Bennett has acquired no rights, as against Hotchkiss, and the latter is not bound to account, or to convey to Mrs. Shilling, or to Bennett, upon payment of the arrears of the purchase money for which the land was bargained to Mrs. Shilling.
These views appear to us, to dispose of this case upon its merits, and to render it unnecessary tó consider in detail most of the elaborate argument of the appellants.
Order denying a new trial affirmed.