220 N.W. 415 | Minn. | 1928
This is an action for specific performance of an earnest money contract for the sale of real estate for $52,500, payable in instalments. *145 The contract specified that plaintiff, the vendor, would furnish defendant, the vendee, with a Torrens certificate of title showing good title. The title of record stood in the name of Jacob Leuthold, who owned approximately an undivided one-half, and the plaintiff held an unrecorded deed from Leuthold for substantially the other half.
At the time when plaintiff was to make title under her contract, but not when contract was made, she had a contract in writing from Jacob Leuthold and wife agreeing to join in the execution of final contract and in the warranty deed to be given; and in this manner plaintiff with her own warranty deed was in a position to give defendant the title called for by the contract, but she failed to have title in her own name. The trial court denied plaintiff's prayer for relief and awarded defendant judgment for a return of the $2,000 earnest money which he had paid on the contract.
In Goetz v. Walters,
In Benedict v. Williams,
In Townshend v. Goodfellow,
In George v. Conhaim,
In Gregory v. Christian,
In Loveridge v. Coles,
The fact that lands are encumbered or the title otherwise imperfect when the contract is made or at any time before the date fixed for its completion will not alone constitute a defense to an action for the recovery of an instalment falling due at any earlier date, or a ground for a rescission of the contract, since such encumbrance or other defect may be removed within the time fixed for the completion of the purchase. Duluth L. L. Co. v. Klovdahl,
Where a vendor contracts to convey a marketable title by warranty deed and fails to acquire such title within the time limited therefor, such failure, unless waived by the vendee, is a complete defense to a note given for an instalment of the purchase price. Schlemmer v. Nelson,
In Paynesville Land Co. v. Grabow,
In the instant case the plaintiff contracted to "deliver to the buyer a certified Torrens certificate of title to said land, continued to date, within ninety (90) days from date hereof; the buyer shall have 15 days thereafter to examine said title and, in case said title shall be found good and marketable, to perform this contract; in case said title shall be found not good and marketable, the seller shall have _____ days thereafter to make it such, and on so doing shall notify the buyer in writing, after which the buyer shall have _____ days to perform this contract; and in case said title shall not be good and marketable within said time, this contract shall become void, said earnest money returned to the buyer and neither shall be liable for damages."
We construe the quoted part of the contract as meaning that the plaintiff agreed to deliver a certified Torrens certificate of title in her name. Steiner v. Zwickey,
Plaintiff claims that she made title for the consummation of the transaction. She entered into a written contract with Jacob Leuthold, his wife joining, wherein he and his wife agreed to join in the final contract, acknowledged and recordable, with defendant. She claims that she could thus contract and deliver title and that defendant would not only eventually have her warranty deed as to all of said premises but also in addition thereto the warranty of Leuthold as to one-half thereof. It is claimed that by this process defendant would acquire a perfectly good title and that he should be required to accept the title.
But to enforce such title upon defendant would be to compel him to assume contractual relations with one with whom he did not choose to contract. The fact remains that plaintiff did not deliver the certified Torrens certificate of title in her name. She did have a deed from Leuthold as to an undivided one-half. But under the Torrens system that deed did not establish ownership. No deed concerning registered land can take effect as a conveyance, except *149
perhaps as to the parties thereto, other than as authority to the registrar to make registration. Abrahamson v. Sundman,
Defendant purchased land on instalments. He was careful to contract that plaintiff should show a certain kind of title before entering into the final contract. Plaintiff now in substance says to the purchaser: "I have concluded to have you obligate yourself not only to me but also to another." She assumes the right to say that she and defendant would abandon the original plan and make a different contract to which a third person was to be a party. This is not the spirit of her contract. Before she may specifically enforce the contract she must perform her part of the contract. She has not. The burden is upon her and she has failed to establish the necessary facts to entitle her to the relief sought.
No claim is made that defendant's rescission was premature. Indeed the plaintiff stands squarely upon the record, claiming that by virtue of the contract between her and the Leutholds she is in a position to compel performance of the contract on the part of defendant. But she has not made title in herself as she contracted to do. Indeed, as indicated, she has not shown that she has any title to any part of the land. She has not produced a contract between herself and the Leutholds whereby she may acquire title before entering into the final contract. Had she done this she would have been in a position to carry out her agreement. She has not shown that she has the power to become the owner in fee by legal or equitable proceedings. She could become such only to a fractional portion thereof. She has not shown any means of obtaining the balance. She has seen fit to content herself in taking such steps as would give the vendee good title by the combined acts of Elders and Leutholds, which includes her warranty on the entire premises.
To sustain plaintiff's contentions would be to compel defendant to assume contractual relations with Leutholds covering a number of years and involving important business relations. The general rule is that a person has the right to determine for himself with whom he will enter into contractual relations. 2 Dunnell, Minn. Dig. (2 ed.) § 1731a. Defendant does not choose to contract with *150 Leutholds. His earnest money contract did not bind him to enter into an agreement with anyone but plaintiff, and his consent is a prerequisite to the court's saying to him that he must enter into such a contract with a stranger.
Before a vendor can resort to the remedy of specific performance he must comply with the contract on his part and must show that he has such title as he contracted to convey. We are of the opinion that plaintiff, having failed to furnish the title she contracted, is not entitled to enforce specific performance; and that, since she has no contractual relation with the fee owner under which she can acquire title to the premises, defendant successfully rescinded the contract and was entitled to a return of the money paid.
Affirmed.