20 Minn. 91 | Minn. | 1873
By the Court.
In the actual state of the pleadings at the time of trial, this action was of a purely equitable nature. The issues of fact were therefore to be tried by the court subject to the right “ of the court to order that the whole issue or any specific question of fact involved therein be tried by a jury.” Chap. 66, sec. 199, Gen. Stat. It was therefore entirely competent for the court, in its discretion, to submit, as it did, certain specific questions of fact to a jury in this case, and we find no reason to doubt that the discretion was properly exercised. It is not important that the course pursued to procure such submission was not in accordance witl Rule 23, District Court Rules, 6 Minn. Whatever force that rule
It appears in this case that on the 13th day of August, 1867, John Jordan, being, owner in fee and in actual possession of a one hundred and sixty acre tract of land, sold and conveyed by warranty deed to plaintiff a part thereof, to-wit, a certain forty acre tract, being the premises in controversy in this action. The deed was recorded March 8th, 1869. On the twelfth day of May, 186S, John Jordan, without the knowledge or consent of plaintiff, mortgaged said one hundred and sixty acre tract to Noah Lincoln. The mortgage was recorded May 20th, 1868.- Lincoln, at the time when he advanced the money ($800) loaned on the mortgage, and at the time he took the mortgage, had no notice of plaintiff’s interest in the land. The mortgage was duly foreclosed March 3d, 1870, by the sale of the entire one hundred and sixty to Lincoln, whose certificate of sale was duly executed and recorded. On Feb. 28th, 1871, John Jordan, by warranty deed in common form containing a covenant that the premises were free from encumbrances, conveyed all of the one hundred and sixty except the forty before conveyed to plaintiff to defendant. Defendant did not redeem the land from the foreclosure sale, but suffered the time of redemption to expire and the title of the whole one hundred and sixty to become absolute in Lincoln, March 4th, 1871. After the time of redemption had expired, defendant purchased of Lincoln, and Lincoln duly-conveyed to defendant the entire one hundred and sixty, and defendant now holds the legal title to the same, including the forty acres in dispute.
The case stipulated states that “ there was no evidence of any written contract in regard to the payment of the Lincoln mortgage between John Jordan and defendant except the deed hereinbefore mentioned” meaning, as we understand it, the deed of February 28, 1871. This deed being introduced in evidence, the.plaintiff put the following question to John Jordan, viz.: “What conversation took place between you and defendant at the time you gave him his deed of the 120 acres 1” Defendant’s objection being overruled and exception taken, the witness answered, “ The defendant wanted to buy
It is contended for the defendant that the court’s conclusions of law and the judgment were errroneous ; first, because the plaintiff could not maintain this action, since he was not only not a party to the alleged contract between John Jordan and the defendant, but was a stranger to the consideration. So far as this court is concerned, the case of Sanders vs. Clason, 13 Minn. 379, is decisive against defendant’s position. In that case, N. B. & C. L. Clason being indebted to Sanders & Co., sold and delivered to M. B. Clason their stock in trade upon the consideration in part of his, M. B. Clason’s, promise to pay said indebtedness to Sanders & Co. This court held that Sanders & Co. could maintain an action against M. B. Clason upon his said promise. In the case at bar (assuming for the present, that the contract between John Jordan and defendant was valid,) John Jordan conveyed to defendant
Defendant further contends, however, that the fourth finding of the jury and the finding of the court that the conveyance from John Jordan to defendant, was made in consideration in part of the unwritten agreement found by the jury in said fourth finding, and the court’s conclusions of law were erroneous, because the evidence of such parol agreement was incompetent and inadmissible. In support of this position, defendant argues that “ the deed from John Jordan to defendant constitutes the written contract, out of which the rights of the plaintiff, if any, spring, and which he seeks to enlarge by the addition of ^.contemporaneous parol contract making a
The consideration of the deed from John Jordan to defendant is expressed therein to be fifteen hundred dollars; and the defendant further contends that evidence of the fact that the unwritten agreement spoken of was part consideration of the deed was inadmissible because it “ contradicts * * the very gist of the contract itself by parol evidence.” The general rule is that the expression of a consideration in a deed does not exclude proof of another or different consideration cy parol. 1. Gr. Ev. § 285; McCrea vs. Purmest, 16 Wend, 460; Murray vs. Smith, 1 Duer. 428; Rawle on Covenants, 65 et seq. No reason is apparent why the general rule should ndt apply to this case, Bolles vs. Beach, 2 Zabriskie, 692 ; Wilson vs. King, 8 C. E. Green, 152, It is not necessary to inquire whether it would have been competent in a case in which such proof might have been material, to show that notwithstanding John Jordan in his deed to defendant covenanted that the one hundred and twenty acre tract was free from incumbrances the defendant had as part consideration for such deed, agreed to pay off and discharge a mortgage upon the same, though the cases cited (Bolles vs. Beach, and Wilson vs. King, supra,) main-;ain such competency. The substantial question in this case is whether defendant, as part consideration for the deed of ;he one hundred and twenty acre tract agreed to relieve the
Judgment affirmed.