DocketNumber: Nos. 19,891—(23)
Citation Numbers: 134 Minn. 407
Judges: Dibell
Filed Date: 11/17/1916
Status: Precedential
Modified Date: 9/9/2022
This is an action in equity-to compel the defendant to convey to the plaintiff a tract of land, upon the ground that it had been bought by the defendant for the plaintiff and paid for by him. Title was taken in the name of the defendant and a contract given by him to the plaintiff. If this relief was denied the plaintiff asked that the enforcement of the payments coming due on the contract be stayed until a mortgage upon the land, executed by the defendant to his vendor, was satisfied. There were findings and conclusions denying the relief asked by way of conveyance, but staying the enforcement of some but not all of the payments coming due on the contract.' The full measure of relief asked by the plaintiff was not given. He appeals from the order denying his motion for a new trial.
The contract provided that Sulflow should give a warranty deed. He is insolvent. The court finds: “That said Sulflow at the time of the commencement of this actioñ was insolvent, and has so continued until the present time and is totally unable to pay said promissory notes or to comply with the terms and covenants of said mortgage and is therefore about to lose said property. That if plaintiff be compelled to comply with the terms of the contract * * * and make the payments therein provided for to the defendant Sulflow, he is in danger of losing both said land and the money paid in performance of said contract.” Burnett did not know of the mortgage at the time of the contract.
Under the circumstances recited Burnett is concededly entitled to relief. The question has infrequently arisen, and never so far as we find in a situation precisely like that before us, but in principle the right to relief is directly held or impliedly recognized. See Bowen v. Thrall, 28 Vt. 382; Fehrle v. Turner, 77 Ind. 530; Mallard v. Allred, 106 Ga. 503, 32 S. E. 588; Yonge v. McCormick, 6 Fla. 368, 63 Am. Dec. 214; Gillham v. Walker, 135 Ala. 459, 33 South. 537; 1 High, Injunctions (4th ed.), §400; 2 Warvelle, Vendors, § 917. The principle which permits relief is not in conflict with the rule that the existence of an encumbrance does not prevent the vendor recovering instalments prior to the last on his contract of sale, it being sufficient if he has unencumbered title when it becomes his duty to convey. See True v. Northern Pacific Ry. Co. 126 Minn. 72, 147 N. W. 948, and cases cited. Nor is it in conflict with the rule that one in undisturbed possession under a contract of sale cannot have relief in equity against his contract to pay. It is the vendor’s insolvency which- gives the right to relief, and the right rests wholly upon equity. Burnett is in possession getting the rents and profits. He does not claim fraud. He does not ask for a rescission. He wants the benefit of his bargain, and is asking equitable relief in protection of it. No rule fixes the precise relief appropriate to a particular case. In a proper case the court may arrest the collection of the purchase money payments and may provide for their application upon the mortgage.
Such a decree gives substantially adequate relief as the situation will be up to the time the 1918 payment on the mortgage becomes due. So far as may be, however, the appropriate relief finally to be given should be definitely fixed now. If the defendant pays the $26,500 when it becomes due in March, 1918, he may proceed with the enforcement of the contract. If he does not pay, the plaintiff may pay, and the amount which he pays will be credited against the payments coming due on the contract, stopping interest, and leaving the balance to be paid upon the last instalment if he wishes it so. Apparently the plaintiff needs no equitable aid in order to enable him to pay the $26,500; but since equity has undertaken to give relief it should make it complete. If the defendant does not pay, but is able to extend the mortgage so that the payments will not exceed the amounts coming due on the contract, this can be permitted ; or, if he does not, and the plaintiff is able to make an arrangement whereby he can pay on the mortgage the amounts coming due on the contract, such arrangement will protect the parties. If the property goes to foreclosure and the title is lost, the plaintiff ydll be protected by his legal remedies and defenses. The enforcement of the contract should be stayed until title goes under foreclosure^ unless payment is made or an arrangement such as is indicated is made. If desirable a receiver may be appointed to carry out the decre'e, and he may be subject to future directions of the court. The plaintiff complains because he is required to
The conditions being as at present when March, 1918, comes, there is no practical difficulty, for the property will easily take care of the mortgage, and the contract instalments can be made, and no one will lose. The court should be able to shape and carry out a decree bringing this result. A new trial of the various issues of fact is not necessary. Further proceedings will be in accordance with this opinion.
Order reversed.