86 Minn. 52 | Minn. | 1902
Action to cancel and annul a contract for the sale of certain real property. Plaintiff had judgment in the court below, and defendants appealed.
The facts are as follows: Some time prior to the commencement of the action defendants entered into a contract with plaintiff for the purchase of certain real property in Hennepin county, and
“Ordering, adjudging, and decreeing that the said contract is at an end, and cancelling the same; and that the defendants,.and each of them, have no right, claim, lien, or interest in or to said premises, or any part thereof; and ordering and decreeing execution to issue for the possession of said premises, and each and every part thereof.”
Defendants failed to make the payment as required by the terms of the stipulation, whereupon plaintiff applied to the court, without notice to defendants, and obtained an order for judgment finally cancelling and annulling the contract; upon which order judgment was entered accordingly, from which this appeal was taken.
Two points are made by appellants: First, that the stipulation was in effect a new contract, necessitating a new notice to effect its cancellation. There is no merit in this contention. The effect of the stipulation is nothing more than a voluntary extension on the part of plaintiff of the time of payment under the contract, and resulted in the mere suspension of hostilities until the time fixed should arrive. The stipulation must be construed so as to voice the intention of the parties, and to hold with defendants
It is also claimed that, by the terms of the stipulation, though the plaintiff was given the right, upon defendants’ failure to make payment, to apply for the relief prayed for in the complaint, plaintiff was limited in the relief so to be applied for to that specifically demanded in the complaint. The complaint prays for judgment
“(1) That the amount due plaintiff under the terms of said contract be ascertained and determined. (2) That the said defendants be allowed a reasonable time, to be fixed and determined by the court, for the payment of the said sum of money.”
Defendants insist that the plaintiff was entitled under the stipulation to apply for judgment determining the amount due upon the contract and fixing a reasonable time within which defendants should redeem the premises, and that the judgment cancelling and annulling the contract absolutely, without granting a reasonable time for redemption, was unauthorized. We are unable to concur in this contention. Indeed the language of the stipulation is a complete answer to defendant’s contention. It expressly provides, as we have quoted above, that the plaintiff might, upon defendants’ default, apply to the court, without notice, for judgment as prayed for in the complaint, and thereupon cause judgment to be entered adjudging and decreeing that the said contract is at an end, and cancelling the same, and awarding execution for the possession of the premises. In the face of this express language, there is no basis on which defendants can claim that they were to be granted by the terms of the judgment a reasonable time in which to make final redemption. The stipulation
Judgment affirmed.
On June 9, 1902, the following opinion was filed:
On-application for a reargument in this case the defendants presented certain affidavits upon which they ask this court to set aside the stipulation which is the basis of the judgment appealed from. The case was disposed of in this court upon the record in the court below, and .we have no jurisdiction to consider the question whether the stipulation was authorized or not. Therefore it is ordered that the application be and it is denied, without prejudice to any right the defendants may have to apply to the district court to be relieved from the stipulation and judgment.