15 Minn. 81 | Minn. | 1870
By the Gourt The complaint alleges that on the 4th day of June, 1858, Bussell became owner in fee simple and seized of two certain town lots in Minneapolis; that on or about the 1st day of October, 1859, he for a valuable consideration duly made, executed and delivered a deed with full covenants of warranty, whereby he sold and conveyed all his right, title and interest in said lots to Baker, the deed being duly recorded October 8d, 1859. Through sundry subsequent conveyances Baker’s right, title and interest in the lots were transferred to the plaintiff. The complaint further alleges that on or about the 22d day of Decembr, 1858, and prior to said conveyance to Baker, “Bussell wrongfully, unlawfully and fraudulently, with intent to defraud subsequent bonafide purchasers in good faith, granted by deed the aforesaid lands and premises to one H. S. Den-nett, which said deed was recorded in the office of register of deeds in and for Hennepin county, State of Minnesota, on the 22d day of April, A. D. 1859, * '* * * that said deed from said Bussell to defendant Dennett, was made and executed without the knowledge, consent, or approval of said defendant, and the consideration therein expressed of one thousand dollars was wholly and entirely false ; that no good, valuable or any lawful consideration of any kind was ever paid by defendant or received by said Bussell in payment for said grant of land and premises; that said defendant, Dennett, never at any time was seized or ever entered into actual possession of said lots, * * or ever has exercised any of the rights of ownership over said * * premises.” The plaintiff also alleges that Baker was a bona fide purchaser for a valuable consideration; that he, the
The plaintiff asks for the removal of the cloud cast, as he claims, upon his title by the record of the deed to defendant.
The appeal in this case is taken from a judgment entered upon defendant’s default to appear in the court below. The defendant (who appeals) insists that the complaint does not state facts sufficient to constitute a cause of action.
There are obvious reasons why an objection of' this kind interposed after judgment for the first time, especially when the judgment has been entered upon default, should not be favored; and these reasons are still stronger when such objection is first made upon an appeal to this court. Karns vs. Kunkle, 2 Minn. 316. As was remarked in McArdle vs. McArdle, 12 Minn. 106, “when the objection is not interposed until after the issue is made up, and the cause called for trial, or until after verdict and judgment, it should not bo allowed to prevail, if the proceedings can be sustained by any reasonable intendment.” See also Holmes vs. Campbell, 12 Minn., 225. Such objection when originally made upon appeal should, we think, be treated with less indulgence than a motion in arrest of judgment, to which it bears some analogy, for the latter is presented in the first instance to the inferior court where the error complained of occurred, and where it may be corrected with comparatively little expense and inconvenience to parties litigant. But a motion in arrest of judgment for insufficiency of a declaration was not allowed where the facts material were alleged or fairly inferable from what was alleged. Addington vs. Allen, 11 Wend. 375 — Gould’s Pleading, 503.
We are therefore of ©pinion that it is fairly to be inferred from the allegations of the complaint, that there has never been any delivery of the deed to the defendant, and that the complaint is therefore sufficient to support the judgment.
Judgment affirmed.