41 Minn. 448 | Minn. | 1889
The plaintiffs, as copartners in the purchase and sale of the real estate and equitable interests herein involved, having equal shares therein, brought this action to compel a reconveyance of the fee of one parcel of the land from defendant Flint, and an assignment or transfer of an equitable right or interest in the other parcel from the defendant Zwiekey. These defendants had obtained the title in fee to one tract, and an equitable right in the other, valued together at $1,075, in part-payment for other real estate, which defendant Zwiekey had by a contract in writing, of date July 18, 1887, sold to plaintiff Seiter for the agreed price of $6,000, and in which, as. part-payment, he had acknowledged the receipt of the sum of $1,075. By it the real estate therein sold was to be conveyed by warranty deed upon certain terms as to deferred payments, within 60 days from its date, time being made of its essence. The findings of fact show, and it was admitted at the trial, that the defendant Zwiekey never had title to the premises which he sold; his only interest being a contract of purchase from the owners thereof, bearing date June 17, 1887, and maturing 90 days thereafter; and that on the 1st day of October of that year the owners in fee of said property — being the same persons executing and delivering the contract to Zwiekey of date June 17th — duly conveyed said property to C. W. Youngman, F. W. Youngman, and J. H. Hinter-mister, in whom a perfect title then vested, and has ever since remained. It further appears from the findings that plaintiffs have tendered performance of all terms and conditions imposed upon them under the Zwiekey contract, but that he has failed and refused upon his part. That three days after the commencement of this action these defendants tendered to the plaintiff Seiter a warranty deed of said premises, in which the parties before mentioned, C. W. Youngman, F. W. Youngman, and their wives, and J. H.
The findings of fact are justified by the testimony, although this is not conceded by the appellants. They also contend — First, that, in response to a motion for that purpose, the trial court should have found and filed additional facts; and, secondly, that the judgment as entered was not warranted by the findings. It is true that in Zwickey’s contract there was no express provision that he would convey. But he sold the property, and stipulated that the conveyance should be a warranty deed. This imposed upon him the duty of making and delivering his own deed, not that of another person. Seiter’s contract was with Zwickey, not with the parties who, subsequent to his default, after he had refused to convey and this action had been commenced, intruded themselves into the transaction, and tendered their deed. They were strangers to the contract under which plaintiffs acquired their rights, and by the terms of which all parties thereto were bound. Under his contract Seiter was entitled to a deed containing the personal covenants of his vendor, and with a perfect title of record in him at the time of the delivery. He could refuse to accept the warranty of a third party, for the value of the covenants depended upon the responsibility of the covenantor. Upon Zwickey’s refusal to execute and deliver the deed stipulated for, plaintiffs’ right to rescind matured. Hussey v. Roquemore, 27 Ala. 281; Bigler v. Morgan, 77 N. Y. 312. This being the law, the appellants would not have been aided had the trial court yielded to their request, and added to or amended the facts as found, so as to have included those demanded, and which may have been established by the testimony. It was wholly immaterial that the parties named in the deed tendered to Seiter were actually interested with Zwickey in his contract of purchase dated June 17th, and in the one made later, upon which the plaintiffs paid in property the sum of $1,075; and it was equally as immaterial that on September 12th, before Zwickey made default, he transferred his interest in both contracts and in the property to defend
Judgment affirmed.