Thompson v. Ellenz

Canty, J. Plaintiff brought an action of ejectment against defendants for the possession of the land in question, alleging that on the 22d day of March, 1880, “the Southern Minnesota Railroad Company, by its trustees Samuel B. Buggies, and Albon P. Man, was the owner of this land, and on that day executed and delivered a contract to Nicholas Ellenz, which is set out by copy, and purports to be an agreement by the railway company, “acting as well on its own behalf as on behalf of Samuel B. Ruggles and Albon P. Man, trustees under a special land trust created by said company, of the first part,” and Ellenz, of the second part, by which the first parties agree to convey to Ellenz the land in question for the sum of $559.59, and stating that he had paid in cash $225.7S, and that he agreed to pay the interest on December 1st each year, and $85 of the principal December 1, 1880, and $83 on December 1st of each year thereafter until December 1, 1884. The contract concludes: “In witness whereof the Southern Minnesota Railroad Company hath caused these presents to be signed in duplicate by the commissioner of its land office, and the second party hath hereunto set his name on the day and year above written. M. Conant, Commissioner. Nicholas Ellenz, Pur chaser.” [307] It further alleges that thereafter the trustee, Buggies, died, and one Arlick H. Man was appointed trustee in his place, and thereafter, on September 26, 1885, these trustees “sold, assigned, transferred, and deeded said above-described land, together with said contract for the sale of the same, and all benefits arising from said sale,” to one Frederickson; and that thereafter the land was conveyed, subject to the contract, through several mesne conveyances, to plaintiff. That on December 1, 1891, Ellenz died, leaving as his heirs the defendants in this action, who are wrongfully in possession of the land. That nothing more has ever been paid on the contract, and on May 16, 1892, plaintiff demanded payment of the balance due. That the defendant J. M. Sprague claims some lien or interest in said premises adverse to plaintiff. The answer of all the defendants except Sprague admits the death of Nicholas Ellenz, and is a general denial as to the other allegations of the complaint. Sprague demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The case was tried by the court without a jury and on the trial argument was heard on the demurrer of Sprague, and it was taken under advisement. The evidence of plaintiff was received. Defendants offered no evidence, and the court found the facts, and ordered judgment for plaintiff. From an order denying their motion for a new trial, defendants appeal. 1. On the trial, plaintiff offered in evidence the contract to Nicholas Ellenz set out in the complaint. The defendants objected, on the ground that it was incompetent, irrelevant, immaterial, and not embraced within the issue. The objection was overruled, and defendants excepted. Defendants assign this as error, and urge that, it not having been acknowledged and Ellenz being dead, the signatures should have been proved. No objection was made on that ground. That objection should have been made specially. Schwartz v. Germania Life Ins. Co., 21 Minn. 215. 2. It is urged that this contract to Ellenz is, on its face, neither the contract of the railroad company nor of the trustees, but of Mr. Conant. We do not agree with counsel. From the portion of the contract above quoted it purports to be the contract of the railroad company. [308] 3. It is urged that these trustees never had the legal title to this land, hut were the mere trustees of mortgages, and therefore could not convey the land to Frederickson, and for that reason plaintiff has no title. The railroad company made what is termed a “trust deed” to the trustees, dated August 8, 1864, covering the railroad and these and other lands. It provided for the sale of the lands by the railroad company, with the consent of the trustees, for cash or on credit, the proceeds to be received by the trustees, and reinvested as fast as converted into cash, for the purpose of creating a sinking fund for the security and payment of long-time bonds secured by the trust deed. Another trust deed was executed by the railroad company to the trustees, dated April 1,1868, covering these same lands, and to secure apparently the same indebtedness, and containing a somewhat similar provision as to the disposal of these lands and the reinvestment of the proceeds. On March 13, 1868, the railroad company made to the trustees another instrument, reciting the trust deed of August 8, 1864, and giving the trustees power to sell these lands at such prices, in such parcels, and in such manner and form as they deemed necessary for the purpose of carrying out said trust. It seems to us that these instruments gave the trustees the power to convey the land to Frederickson. Such conveyance was not, as contended by appellants, an attempt to foreclose a mortgage, it was not an attempt to foreclose any mortgage, but a mere substitution of security. The railroad company desired to sell the mortgaged lands, reinvest the proceeds, and substitute the securities so obtained as collateral security for the payment of the indebtedness, and the mortgagee simply consented to the change. If it appeared on its face to be a mere device to evade the statute regulating foreclosure sales and allowing time for redemption from such sales, it might be a different question. 4. One of the transfers between Frederickson and plaintiff in plaintiff’s chain of title is an assignment for the benefit of creditors by a resident of Wisconsin under the laws of that state, and a deed from the assignee. It is urged that this assignment can have no extraterritorial force, and cannot pass title to lands in this state. The laws of this state prohibit common-law assignments only when made by a resident of this state, or a person doing business in this [309] state. See McKibbin v. Ellingson, ante, p. 205, 59 N. W. 1003. This assignment is not repugnant to the laws of this state, does not appear to be repugnant to the laws of Wisconsin, is voluntary, and in the nature of a common-law assignment, and the deed of assignment is executed as deeds of conveyance are required to be executed by the laws of this state. Being made by a nonresident, not doing business in this state, the conveyance is good, at least as against every one but the creditors of the assignor. 5. It is urged that this deed of assignment could not take effect in this state until recorded as provided by Laws 1887, ch. 206, even if otherwise good as an assignment in another state; and, it not having been so recorded before the deed under it was made, such deed is void. Said chapter 206 has no such effect; it is merely a registry law. Paulson v. Clough, 40 Minn. 494, (42 N. W. 398.) 6. Appellants claim that there are defects in the chain of title from the United States government to the railroad company. It is not necessary to consider this question. It sufficiently appears that the railroad company is the common source of title, and that defendants are in possession under that title by virtue of the contract of sale to their ancestor. They are therefore estopped to deny the title of the railroad company. Mitchell v. Chisholm, 57 Minn. 148, (58 N. W. 873.) 7. Ejectment is a proper remedy in this case, especially so when the laches of the vendee are so great, and no excuse for such laches is shown, and no relief asked in the answer. 8. It is urged that the court erred in overruling the demurrer of Sprague. That question is not before the court. He appears to have participated in the trial on the merits without any answer on his part, and the court finds that, he is the owner of a mortgage given by defendants. He joined in settling a case and exceptions, and appeals from an order denying a motion for a new trial. He did not stand on his demurrer, but abandoned it. These being all the assignments of error worthy of consideration, the order appealed from should be affirmed. So ordered. Buck, J., absent, took no part. (Opinion published 59 N. W. 1033.)