
    BETSY TROVATEN v. NORTHERN PACIFIC RAILWAY COMPANY.
    
    February 27, 1914.
    Nos. 18,428 — (254).
    Breach of contract — limitation of action.
    An action for the breach of a contract by the defendant to convey land to the plaintiff, commenced in 1912, the breach occurring in 1901, is barred by the six-year limitation prescribed by R. L. 1905, § 4076 (G. S. 1913, § 7701).
    Action in the district court for Hennepin county to recover $5,980' for breach of contract. The answer alleged that the cause of action, if any there was, accrued more than 10 years prior to the commencement of the action and was barred by the statute of limitations. Defendant’s motion for judgment in its favor upon the pleadings was granted, Jelley, J. From the judgment entered pursuant to the-order for judgment, plaintiff appealed.
    Affirmed.
    
      
      Paul J. Thompson, for appellant.
    
      C. W. Bunn and Emerson Hadley, for respondent.
    
      
       Reported in 145 N. W. 799.
    
   Dibell, C.

The plaintiff appeals from a judgment entered upon an order granting defendant’s motion for judgment on the pleadings.

On August 15, 1899, the plaintiff purchased from the defendant real property situated in Wilkin county. These lands were a part of the indemnity land grant of the Northern Pacific Railroad Co., the predecessor in title of the defendant. The consideration of the purchase was the sum of $1,200, paid in cash then or soon thereafter, and the procuring of the dismissal of a contest instituted by the husband of the plaintiff, in the United States Land Office, against the rights of the defendant. The plaintiff entered and made improvements of substantial value. The defendant agreed to convey to the plaintiff as soon as it obtained title from the government. It obtained title prior to July 2, 1901. On that date it contracted with one Ferguson for the sale to him of a portion of the land and granted him the right of possession. Ferguson brought an action of ejectment against the plaintiff and prevailed after long litigation. The case was twice in this court. Ferguson v. Trovaten, 94 Minn. 209, 102 N. W. 373, and 116 Minn. 19, 133 N. W. 73. It was finally determined on December 10, 1911.

The plaintiff sues the defendant for its breach of the contract to convey when it got title, claiming damages in the sum of $5,980, which include the $1,200 originally paid, the expenses and attorneys’ fees in the litigation with Ferguson, and the value of improvements made.

The defendant pleads the statute of limitations. This action was brought not earlier than September 30, 1912. The period of limitation is six years. R. L. 1905, § 4076, (Gr. S. 1913, § 7701). The breach of the contract was as early as July 2, 1901, when the defendant conveyed to Ferguson. The breach was then complete. The plaintiff at' once had a cause of action against the defendant. She could have brought suit against it and at the same time protected herself against the claims of Ferguson. She is now barred.

While not important to this controversy it may be said with propriety that the defendant does not insist upon retaining the $1,200, alleges that it was long ago tendered the plaintiff, and alleges that it is now subject to certain undetermined garnishment proceedings.

Judgment affirmed.  