| Minn. | Mar 13, 1893
The contract which gives rise to the controversy
in this action is the same one which is referred to and construed in Nolander v. Burns, 48 Minn. 13" court="Minn." date_filed="1892-01-06" href="https://app.midpage.ai/document/nolander-v-burns-7967257?utm_source=webapp" opinion_id="7967257">48 Minn. 13, (50 N. W. Rep. 1016.) Rending that suit, Belden, one of the plaintiffs therein, transferred his interest in the real estate in question to the plaintiff, Brown, who has brought .this action under the statute to determine the adverse claims of the several parties named as defendants. The judgment in the former suit was modified, in conformity with the directions of this court, so as to make it a lien upon the vendee’s interest in the land; only; and accordingly judgment was entered therein on the 11th day of March, 1891, establishing the liens of the several defendants who have appeared in this action, and adjudging the several amounts due to ■each to be a specific lien upon all the right, title, and interest of Charles J. Burns, who is the vendee in the contract referred to, on the 7th day of March, 1890. The contract was dated January 18, 1890,- and the owners of the lots therein agreed to be sold (Belden and .Brown) covenanted to convey the same to Charles J. Burns on the performance by him of his part of the agreement. The latter agreed to build and complete the three houses .on the premises therein described within four months, and to pay $2,600 on or before that time, and the vendors also agreed, on the completion of the houses, to negotiate a loan of $5,850 upon the property. Burns made default, and failed to comply with the terms of the contract, and th9 contract was declared forfeited, as to him, March 2, 1891, after notice duly served on him; and the plaintiff then resumed possession of the premises.
We may assume from these facts that Burns’ interest had not been previously “forfeited or surrendered.” The lien claims were duly filed and established before the forfeiture, and were held to be a charge only upon the separate interest of. the vendee, for that reason;
The equitable rights of these defendants, lienholders, accruing under the building clause in this contract, could not be destroyed by the subsequent acts or omissions of the vendee. And the vendee’s interest will be treated as still outstanding, for the purpose of enforcing the lien against it established by the judgment. King v. Smith, 42 Minn. 286" court="Minn." date_filed="1890-01-08" href="https://app.midpage.ai/document/king-v-smith-7966309?utm_source=webapp" opinion_id="7966309">42 Minn. 286; (44 N. W. Rep. 65.)
2. The next question relates to the procedure for foreclosing the liens -in such cases. In this case the court below undertook to ascertain the equities of the vendors and vendee, and then ordered the real estate to be apportioned or partitioned between the plaintiff and answering defendants according to the respective interests so ascertained; and the plaintiff is ordered to make deeds of conveyance to each party who shall pay the proportion assessed upon him of the amount remaining due under the contract. This was error, unless consented to by all parties. But the plaintiff does not consent, and hence the only proper course to pursue was to proceed to forclose the liens, pursuant to the directions of the statute, by a sale of the equitable interest of the vendee. He is, for the purposes of this action, to be deemed the equitable owner, subject to the conditions of the contract, and the adjustment and payment of the amount due the
Such sale is to be without redemption, and the proceeds should be ratably distributed in proportion to the amount due each of the lien claimants. Section 13. As the only condition to be fulfilled is. the payment of the amount of plaintiff’s claim for purchase money and advances, less the amount realized upon the mortgages, it is. proper that the judgment should adjust the balance due plaintiff-The contract required that the vendee should erect three houses, and contemplated the raising by mortgage of the sum of $5,850, which was undoubtedly intended to create a fund to enable the vendee to complete the contract. But only two houses were built, and the sum of $4,000 raised by mortgage January 5, 1891. This sum the court allowed the plaintiff on account of the amount due for purchase money, being $2,600 and interest, and advances by him made to complete the houses, amounting to $2,007.88, and interest-thereon, about which there is no dispute, leaving a balance still to-be paid plaintiff on these claims, and an unsettled claim of $2,106.S6-; for moneys admitted to have been paid by the vendors to cancel indebtedness incurred by the vendee, in the erection of the building, for work and materials furnished by divers persons, and for which they were severally entitled to liens. This claim the court found the plaintiff equitably entitled to have placed on the same footing with the claims of the defendants, and to be paid ratably out of the proceeds of the sale. The defendants do not complain of this disposition of the claim, and we think it is fair and just to the plaintiff-There is no reason for giving it a preference over the claims of the-defendants of a like nature. The sale of the vendee’s equitable interest-will be a sale of the property subject to the mortgages, and the payment of the balance due plaintiff for purchase money, and the amount expended in completing the building, as above stated;; and the proceeds of the sale will be brought into court and distributed ratably on payment of the claims of the defendants, and the plaintiff’s claim of $2,106.86, and interest. Should there be a surplus, the plaintiff will be entitled to it, since, as between him and the vendee, the interest of the latter is merged in the estate of the
There are numerous other errors assigned, which we do not deem necessary to consider, as they can in no way affect the disposition of the case. There is no occasion for a new trial.
The order denying it will therefore be affirmed, and the case will be remanded, with directions to modify the judgment in accordance with this opinion.
(OpiDion published 55 N.W. 54" court="Minn." date_filed="1893-03-13" href="https://app.midpage.ai/document/brown-v-jones-7967801?utm_source=webapp" opinion_id="7967801">55 N. W. Rep. 54.)