Coolbaugh v. Roemer

Dickinson, J.1 1. The fact relied upon by the appellant as a ground for reversal, that she was'deprived of the right of a jury trial, is not so presented as to authorize us to consider it. There is no case or bill of exceptions. The fact alleged only appears by a statement of the court incorporated in its findings of fact. A fact occurring at the trial, and not matter of record, cannot be so authenticated. Bazille v. Ullman, 2 Minn. 110, (134;) Dartnell v. Davidson, 16 Minn. 447, (530;) Stewart v. Cooley, 23 Minn. 347; Stone v. Johnson, 30 Minn. 16. The last proviso of Gen. St. 1878, e. 66, § 254, is relied upon, which provides a summary mode of making record of an exception taken to a ruling of the court during trial. A statement made by the court, subsequent to the trial, and as a part of its findings of fact, is not a compliance with the terms of that statute. 2. The defendant shows no sufficient reason for asking to have the execution sale through which plaintiff’s legal title is derived, set aside. The only facts averred upon which to found this claim are that the land in question, consisting of parts of two contiguous city lots, and [450] being physically one body of land, constituted two tracts or parcels, but that it was levied upon and sold as one tract; and, further, that the price for which it was sold to the judgment creditor was inconsiderable as compared with its actual value. No fraud or other misconduct is alleged. It is determined by the findings of the court that the property constituted but one parcel or tract, and we must presume that this conclusion is supported by the proof. It is not necessarily inconsistent with the fact of there being upon the land two dwelling-houses, occupied by different tenants. The mere fact that the price for which the property was sold was far below its real value, is not a sufficient reason for setting aside a sale fairly made, especially in view of the fact of the right of redemption remaining in the judgment debtor and his assigns. Mixer v. Sibley, 53 Ill. 61. 3. The court below denied the defendant’s prayer for equitable relief, and determined that the plaintiff should recover possession upon her legal title, for the reasons that, as was considered, the defendant had relied in defence upon an asserted legal title in herself, had not asked for an accounting as to the amount of the purchase price which the plaintiff was entitled to receive, and had not tendered or offered to pay such sum. Upon the facts presented by the pleadings and found by the court, we see no substantial reason why the equities of the parties might not have been determined in this action, and the whole controversy terminated. The defendant, although claiming, in addition to her equitable right, a legal title, appears to have the equitable rights of a purchaser in possession, to which equitable rights the plaintiff’s legal title was subject. The averment in her answer that she was in possession under the bond for a deed is not denied by the reply; and the findings of the court are not inconsistent with the implied admission of that fact by -the plaintiff. The reply only qints in issue the fact of her taking possession at the time of the execution of the bond for a deed; and the findings of the court are to the effect that while at that time no actual change of possession took place, yet the proceeds of the property, which was under lease, — the rent, — was collected and applied by the vendor in payment of the purchase price. The mere delay and neglect of the defendant to pay or tender to the [451] plaintiff what she may have be.en entitled to receive of the purchase price, seems, under the circumstances, not to have been inexcusable. Not only had the existence of any right on the part of the plaintiff, as opposed to defendant’s equitable claim, been in dispute, but the amount which plaintiff might be entitled to receive had never been determined, and is still in controversy. It is true, the defendant does not formally pray for an accounting, but she evidently seeks such relief in her prayer that conveyance be decreed to be made to her upon payment of such sum of money as may be found by the court to be due to the plaintiff. She has not averred in her answer her willingness to pay such sum; but, in an action for an accounting, that seems now to .be not essential, and we see in that omission no obstacle to the granting of the relief sought here. Colombian Govt. v. Rothschild, 1 Sim. 94, 103; Wells v. Strange, 5 Ga. 22. The omission to plead a willingness to pay seems not very important, in view of the fact that in administering equitable relief the court would not, as the ease stands, render judgment absolutely requiring the defendant to make payment, but would only require payment within a time stated as a condition of granting relief. * It is our conclusion that the order for judgment should be modified; that the court should direct an accounting between the parties; and that, upon determination of the amount which the plaintiff is entitled to receive of the purchase price, judgment should be entered to the effect that, upon payment of such sum within such time as shall be designated by the court, the plaintiff convey to the defendant; and that, in default of such payment, the defendant be barred of her equity, and that the plaintiff thereupon recover possession. The order denying a new trial of the issues already determined is affirmed, but the cause is remanded -that our determination as to the equities of the defendant may be carried into effect by an accounting and the modification of the order for judgment, as above expressed. Footnotes [1] Mitchell, J., being absent, took no part in the decision of this case.