Ortman v. Chute , 57 Minn. 452 ( 1894 )

Collins, J.

There is nothing at all in the claim made by plaintiff in this action. It was brought to obtain a partition of certain real property. As the widow of one Earnest Ortman, deceased, she claims to be the owner in fee of an undivided one-third of the premises. We need not go into the facts except to say that in 1881, three years after the property had been sold to defendant Samuel H. Chute, to satisfy an execution issued upon a judgment entered and docketed against said Earnest Ortman, who then owned the lots, and from which sale there has been no redemption, said Earnest Ortmau and this plaintiff, his wife, made, executed, and delivered their deed of conveyance under seal, in which, for an expressed consideration of one dollar, they granted, bargained, sold, and quit-claimed the premises to these defendants. This deed was duly acknowledged by the grantors, and was put upon record. The court found, as facts, although we must not be understood as holding that they were material, that, at the time of the purchase at the execution sale, these defendants were copartners under the firm name of Ohute Bros., engaged in the business of buying and selling real property; that said purchase was made for the firm, and the price paid out of firm funds, although the sheriff’s certificate was issued to Samuel H.; and also found that the sum of $100 was the actual consideration for the execution and delivery of the deed referred to.

Although it is asserted by counsel for plaintiff to the contrary, we regard these findings as fully supported by the evidence. We do not feel called upon to discuss the points made in the very full and ingenious brief made by counsel for plaintiff, and really based upon 1878, G. S. ch. 46, § 3, and Id. ch. 48, § 1 (13). It is sufficient to say that 1878 G. S. ch. 40, § 1, provides that conveyances of land, or of any estate or interest therein, may be made by deed executed by any person having authority to convey the same, and duly acknowledged and recorded, while, by the next section, the real estate of the wife may be conveyed by the joint deed of husband and wife. In section 26 of the same chapter it is enacted that the term “conveyance,” as used in chapter 40, shall be construed to embrace every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or in equity, except wills, some certain leases, and executory contracts for the sale or purchase of real property. Here Earnest Ortman and his wife, this plaintiff, made, executed, and delivered, under their hands and seals, to these defendants a deed of conveyance whereby, for an actual consideration of $100, the expressed consideration being nominal, they granted, bargained, sold, and conveyed the premises in dispute to defendants.

The plaintiff is bound by the conveyance for several reasons, and by no amount of ingenious reasoning and refining can it now be demonstrated that she retained an inchoate right to an undivided third, which ripened into the estate provided for in Laws 1889, ch. 46, § 64, when her husband died, in 1890.

Order affirmed.

Buck, J., absent, siek, took no part.

(Opinion published 59 N. W. 533.)