241 N.W. 592 | Minn. | 1932
September 20, 1929, defendant contracted to purchase a farm from the appellant at the agreed price of $17,600; $500 in cash, $2,000 on March 1, 1930, the balance payable in instalments over a period of years. The defendant defaulted in the payment of the $2,000 instalment and in the interest which was due September 1, 1930. The judgment here involved was for $2,532.48, which was recovered by the plaintiff for the defaulted instalment and interest. Defendant again defaulted on the instalment next thereafter due, *477 and the plaintiff canceled the contract according to its terms by serving the proper notice of cancelation. This cancelation was predicated upon the default accruing on March 1, 1931, and not upon the instalment and interest included in the judgment.
The sole question presented by this appeal is whether or not the subsequent cancelation of the contract for deed entitles the defendant to the order satisfying and discharging the judgment of record.
It is fundamental that unpaid instalments cannot be collected by the vendor after the cancelation of the contract. 30 A.L.R. 631. Does that rule apply to uncollected judgments for instalments due previously to and not forming a basis for the cancelation? The trial court relied upon the case of Warren v. Ward,
It is the contention of the plaintiff that the entry of judgment amounted to the creation of a new obligation, separate and distinct from the original agreement by the defendant in the contract for deed to pay the instalment which was the basis of the judgment. Plaintiff cites the case of Andresen v. Simon,
"The judgment was but evidence of an indebtedness which, in justice, should be inoperative and of no avail by reason of the action to recover the land, and the result thereby secured." *478
Warren v. Ward,
We see no distinction between the case at bar and the case of Warren v. Ward,
"Neither is the fact that the deferred payments are evidenced by a judgment of any consequence. A judgment is conclusive as to all defenses arising prior to its rendition, for the reason that they either were or might have been litigated in the original came (Black, Judgts. § 970), but it does not conclude a defense which did not exist at the time. Thus, the failure of a vendor's title is a good defense to an action brought to enforce payment of a judgment obtained upon notes given in part payment of the first instalment of the purchase money on a contract to convey land, when the failure occurred after the date of the judgment; Burwell v. Jackson,
The order appealed from is affirmed. *479