97 Minn. 161 | Minn. | 1906
Action in partition, involving title to a two-ninths interest in the west twenty two feet of lot 6, block 49, town of Minneapolis. Both parties claim title under James A. Bradley, who died December 19, 1894. November 30, 1894, just before his death, Mr. Bradley executed a deed of the west one-third of lot 6 and the east one-third of lot 7 to. the Union Theological Seminary of Virginia, and on the same day also executed two other deeds of other property in Minneapolis; one
Whereas, H. W. Bradley has heretofore, with our consent and approval, instituted legal proceedings and commenced certain suits in our names against the trustees of Davidson College, the Grand Dodge of North Carolina, and the Union Theological Seminary of General Assembly, in the district court of the county of Hennepin, state of Minnesota, for the recovery of certain parcels of land and property hereinafter described and the determination of certain adverse claims against said lands, and for the setting aside of three certain pretended deeds purporting to be made by one James A. Bradley, and purporting to convey said real property; and whereas, the said suits were commenced and legal proceedings taken in our behalf with our consent and approval, and under our direction, and we do hereby wish to confirm and ratify the said action of H. W. Bradley, and provide for the maintenance of said suits, and any other suits necessary to set aside said alleged deeds or any of them: Now, therefore, this agreement witnesseth, that for this purpose, and in order to accomplish the results intended by the institution of said legal proceedings, and as compensation for all legal services of all attorneys who may be engaged therein, and in consideration of the covenants hereinafter expressed to be performed by the party of the second part, the parties of the first part (being, with the exception of J. M. Mason and Henry Bond, the only heirs at law of said James A. Bradley, deceased) do hereby grant, bargain, sell, convey, transfer and alien to the said Du Brutz Cutlar, the party of the second part,*163 his heirs and assigns, an undivided one-third of said property, of which the following is a more particular description.
The instrument also contained provisions which we may denominate a power of attorney, whereby the heirs constituted Du Brutz Cutlar their true and lawful attorney, irrevocably, to prosecute to final judgment the suits commenced as aforesaid, and to take any other action necessary for the determination of any claims to the property adverse to the rights and claims of the heirs and for the recovery of the premises and the quieting of the title thereto, and, further, to take charge and possession of the property and collect the rents. There was also an assignment to Cutlar of a sum not to exceed $500, of the accrued rents, for the purpose of meeting the disbursements and expenses of the litigation. The instrument also contained the following covenants on the part of Cutlar:
And, for the purposes above named, said party of the second part further covenants, promises and agrees to employ competent counsel to represent all the parties to this instrument, and to provide that he and all other counsel appointed in the prosecution of said action shall be compensated for their services exclusively out of the undivided third part of said real property hereinbefore conveyed, and without any charge or liability therefor upon the part of the parties of the first part, or either of them; and said party of the second part is hereby authorized and empowered for us, and in our names, and in the name of each of us, to settle and compromise said adverse claims, or any of them, for such sum as in his judgment he may deem proper, whenever and at any time in his judgment the interests of the parties of the first part will be subserved thereby; and the said parties of the first part do hereby give and grant unto the party of the second part any and all right or authority necessary or proper for the due execution of the said power of áttorney.
In connection with Henry W. Bradley, Du Brutz Cutlar and associate counsel proceeded to carry out the provisions of the power of attorney, and brought on for trial in the district court at Minneapolis the action pending against the seminary to test the validity of the
February 28, 1898, the trustees of the Union Theological Seminary executed a conveyance to the several heirs of James A. Bradley, according to their respective interests, which deed recited that the consideration was one dollar, and other valuable considerations thereunto moving to the grantor, in accordance with the stipulation theretofore entered in the district court in the action there pending.
When the present action came on for trial in the district court, it was-stipulated that the plaintiff claimed title to the two-ninths interest involved in this suit through the deeds from the seminary executed in February, 1898, and that defendant Powers claimed title under conveyances from Du Brutz Cutlar. The stipulation amounts to this: That there is involved in this action only a two-ninths interest in the westerly third of lot 6, now owned by respondent Powers by mesne conveyances from Cutlar, unless plaintiff acquired title to it by virtue of the deed from the seminary to the heirs, executed in pursuance of the settlement of the action brought to set aside the Bradley deed.
The case turns upon the intention of the parties, as gathered from the instrument executed between the heirs and Cutlar. If that inden
If the grantor, having no title or a defective title, conveys with warranty, a subsequently acquired title will inure to his grantee by way of estoppel. This is the general rule (16 Cyc. 689), recognized in Thielen v. Richardson, 35 Minn. 509, 29 N. W. 677, and applied as to prior incumbrances in Tappan v. Huntington, supra, page 31, and Rooney v. Koenig, 80 Minn. 483, 83 N. W. 399. The same prin
Du Brutz Cutlar and his associates were entitled to rely upon the position taken by the grantors, and they were justified in going on and working out the project for the benefit of both parties. The very deed under which appellant claims from the seminary was executed' in pursuance of the plan contemplated the Cutlar deed. It is of no significance that the original Bradley deed to the seminary was in fact valid, or that the heirs in fact had no title to convey at the time they executed the Cutlar deed. Possession of the premises by the heirs was of no importance. These suggestions are wide of the mark. The simple question is: Did the heirs assume to be the owners of the premises and to invest Cutlar with title in praesenti ? They contemplated securing the property in whole or in part, either as a result of a decree adjudging the Bradley deed void, or by way of compromise ° based upon the supposition that it was void. They treated the title as though vested in them, and the object of the deed and power to Cutlar was to remove the apparent indicia of title in some one else. As a result of that position, they secured title to the premises, and it would be in disregard of the plainest principles of equity to permit them and their grantees to accept the fruits of the victory and repudiate the means by which it was acquired.
Order affirmed.
JAGGARD, J., took no part.