Terry v. Wilson's Estate , 50 Minn. 570 ( 1892 )

Vanderburgh, J.

By a contract entered into February 19, 1889, between appellant and J. E. Wilson (now deceased) in his lifetime, the plaintiff agreed to act as agent for the latter in the sale of his lands in Murray county for a commission of five per cent, in all cases where the plaintiff should find the buyer, and two and a half per cent, on sales where Wilson or his agents should produce a purchaser. Plaintiff alleges that Wilson himself found a purchaser for the lands described in the complaint, for which he claims a commission of two and a half per cent, on the purchase price.

This allegation is denied, and in support thereof it appears that Wilson conveyed or caused to be conveyed the lands in questibn to his brothers in the city of Chicago, in August and September, 1889, and the title thereof still appears of record in their names. The court, however, finds upon sufficient evidence that such conveyances were made to the grantees solely for the purpose of securing the repayment to them of large sums of money advanced to said J. E. Wilson by his said brothers at various times previous to and at the time of the making of the said conveyance; that no sale of the lands was contemplated, but it was orally understood • or agreed between the parties at the time that any surplus derived from the sale of the lands, after payment of the indebtedness intended to be secured by the conveyances, should be paid over to Wilson.

Upon this state of facts the court very properly found that this transaction was not a sale to purchasers produced by Wilson, and that plaintiff, was not, therefore, entitled to the commissions claimed. The contract referred to contemplated an actual sale, and the plaintiffs were entitled to show, under the issues as presented, that the transaction was not a sale but á mortgage. Wakefield v. Day, 41 Minn. 344, (43 N. W. Rep. 71.) After the conveyance referred to, the lands were left in the charge of Wilson, with the right to dispose of the same as before, and sales made by him or by plaintiff under the contract were to be recognized by his brothers, and conveyances made by them when required, so that the contract, and the relations of the parties to it, were in no way interfered with by the mortgage.

(Opinion published 52 N. W. Rep. 973.)

Order affirmed.