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eBook details

• Title: Kern Et Al. v. Robertson
• Author : Supreme Court of Montana
• Release Date : January 25, 1932
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 61 KB

Description

Real Property ? Quieting Title ? Vendor and Purchaser ? Executory Contract of Sale ? Death of Vendor ? Equitable Conversion of Realty into Personalty ? Levy of Execution on Property as Realty for Debt of Devisee Void ? Right of Executor to Maintain Action ? Failure to Bring About Speedy Termination of Estate Matter Does not Affect Right. Real Property ? Vendor and Purchaser ? Effect of Death of Parties While Contract of Sale in Force ? Equitable Conversion. 1. An enforceable contract for the purchase and sale of real property passes to the purchaser its equitable ownership, leaving the naked title in the seller, as trustee for the purchaser, as security for the unpaid purchase price; in the event of the death of the purchaser while the contract is in force, his interest passes to his heirs as real property, while, if the seller dies within that time, his interest passes to his personal representative as personalty, and not to his heirs. Same ? Equitable Conversion ? Doctrine Inapplicable to Option Contracts. 2. The doctrine of equitable conversion does not apply to real estate option contracts, such a contract being a mere offer to sell ? a continuing offer of a contract ? which may be accepted within a specified time but is not enforceable against the optionee, as distinguished from a contract under which one undertakes to sell and the other to buy property, which is mutually enforceable. Same ? Quieting Title ? Vendor and Purchaser ? Sale on Deferred Payments ? Death of Vendor ? Equitable Conversion of Realty into Personalty ? Levy of Execution as upon Realty for Debt of Devisee Invalid ? Certificate of Sale Void. 3. Held, in application of the doctrine of equitable conversion, that where the wife of plaintiff (in an action to quiet title) sold realty on deferred payments, her interest therein on her death while the contract was still in force passed to her executor as personal property, and hence was not subject to levy of execution as upon real property for the debts of her husband, devisee under the will, and therefore the sheriffs certificate of sale under such execution did not pass title. 2. Option to purchase as working conversion of the realty into personalty, see note in 50 A.L.R. 1322. - Page 284 Same ? Quieting Title ? Removing Cloud ? Vendor by Contract to Convey Land not Deprived of Right to Maintain Action. 4. A mere contract to convey land will not divest the vendor of his right to maintain an action to quiet title or remove a cloud therefrom when the legal title remains in him. Same ? Quieting Title ? Executor Proper Party to Maintain Action as to Land Sold by His Testate on Deferred Payments. 5. An executor, as holder of the naked legal title to real property sold by his testate on deferred payments, charged with the duty to make conveyance on compliance by the purchaser with the terms of his contract, was a proper party to prosecute an action to quiet title to remove a cloud thereon in the shape of a sheriffs certificate on execution sale of the property levied upon as real property after its conversion into personalty as detailed above. Same ? Right of Executor to Maintain Action to Quiet Title Under Above Circumstances not Affected by Delay in Bringing About Speedy Termination of Estate Matter. 6. The fact that plaintiff executor in his action to quiet title may have been derelict in his duty to bring the estate matter to a speedy termination, and that the court failed to require him to deliver possession of all real property (converted into personal property as above recited), in obedience to section 10139, Revised Codes 1921, to the devisee (himself), could not affect his right to prosecute the action.

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