156 Minn. 132 | Minn. | 1923
This is an action to enforce specific performance of an executory contract by which plaintiff agreed to sell and convey and defendant agreed to buy a farm of 160 acres in Martin county for the sum of $38,400, being $240 per acre. The contract bears date July 21, 1920, and a copy of it is attached to and made a part of the complaint. By its terms defendant agreed to pay the sum of $1,500 at the execution of the contract, the sum of $8,500 on March 1, 1921, and further agreed to assume two mortgages and a ditch lien then against the land and to secure the balance off the purchase price by executing a third mortgage to plaintiff. The complaint alleged that defendant made the initial payment of $1,500, but failed to make the payment of $8,500 due March 1, 1921, or to execute , the third mortgage. Defendant admitted the contract and also the defaults alleged, and then set forth as a defense that she had been induced to enter into the contract by fraudulent misrepresentations concerning the land.
This issue of fraud was tried to a jury who returned a verdict in favor of plaintiff. Defendant acquiesced in this finding without making a motion for a new trial of this issue. The remaining issues were tried to the court some months later who resolved them all in favor of plaintiff and ordered judgment for specific performance of the contract. Defendant appeals from an order denying a new trial.
Although defendant, in her answer, admitted plaintiff’s title, plaintiff proceeded to prove his title and defendant endeavored to pick flaws in it. It may be well to note that the contract in question differs from the contracts involved in Howe v. Coates, 97 Minn. 385, 107 N. W. 397, 4 L. R. A. (N. S.) 1170, 114 Am. St. 723, and Knudson v. Tresbesch, 152 Minn. 6, 187 N. W. 613, on which defendant relies, in that this contract contains no provisions for furnishing an abstract of title and no provision that the title shall be good of record. But as plaintiff’s title is in fact of record, the distinction pointed out is only important as showing that some of the rules applied in those cases are not applicable in this. The contract in question does, however, provide that plaintiff shall convey the property “by a good and sufficient warranty deed,” 'and this obligates him to convey a marketable title — a title good in fact.
The second objection to the title is that one Mary J. Palmer died owning a mortgage on the land and that the executor of her will assigned the mortgage to himself and subsequently satisfied it. Defendant urges that the executor could not deal with himself. The title to the mortgage vested in the executor, 1 Dunnell, Minn. Dig. § 3568, and he had authority to satisfy it whether the transfer to himself as an individual was good or bad. The other alleged defects do not require special mention.
Order affirmed.