By the Court.

So long as the decree, which the respondent obtained in the suit described in the complaint, remains in full force, he must, for aught that appears in this case, proceed to obtain the satisfaction of his judgment in the manner therein prescribed.

The allegations of the complaint do not bring this case within the principle of Banning vs. Armstrong, 7 Minn. 40, and the cases there cited. Here is no obstruction fraudulently or inequitably interposed to prevent a sale under the decree. Such obstruction must at least amount to a cloud on the title. Nothing of the kind is set up. Hotchkiss is said to claim that a large sum, (not stating any specific amount,) is yet due on the purchase money and that Mrs. Shilling, by reason of default in payment according to the terms of the sale, has forfeited all right to the land. Nothing is alleged, upon which such claim is based, but the contract itself, and certain payments stated. From these, however, it is apparent that such claim is false and unfounded as respondent alleges it is.

As to the claim that Mrs. Shilling has forfeited all right, by reason of her failure to pay according to the tenor of the agreement, that is simply an incorrect conclusion of law from the facts stated.

Whatever Hotchkiss’ rights might have been, if he had insisted on payment at the day, the complaint shows on its face as a legal conclusion that, by accepting part payments *93after maturity, he has waived the right to insist on time as of the essence of the contract, and that Mrs. Shilling has incurred no forfeiture by reason of such default. All that he can claim is his money and interest.

As to the claim that some large sum of money is still due, not to mention its indefiniteness, nor taking into account the respondent’s statement of his belief that it has been fully paid, the law fixes what is due on the facts stated as to payments. Hotchkiss being entitled to his money and interest, a simple arithmetical computation determines what the balance is, which evidently would not be a large sum, in the ordinary signification of the word. Such an indefinite allegation cannot in law, however, be taken to mean more than that some thing is yet due.

The respondent’s statement that, as he is informed and believes, the residue of the money called for by the bond and agreement has since been duly paid, is not an allegation of the fact, but of his belief. He does not so consider it himself, or he would not pray for an account.

Nothing appears to change the state of facts existing in this respect at the time of the judgment. It was then contemplated that the purchaser at the sale under it, being placed thereby in Mrs. Shillings shoes, should thereafter deal with Hotchkiss as she might have done. For aught that appears by the complaint, it was contemplated that the land should be offered for sale upon the understanding that since the $700 was paid nothing had been paid, and that, therefore, a certain definite sum would be due Hotchkiss.

If offered now, a purchaser would understand that Hotchkiss’ claim that Mrs. Shilling’s right was forfeited, and that some large sum was yet due, was in point of law wholly baseless. The facts alleged, and the principle of law arising thereon, repel, therefore, the conclusion that Hotchkiss’ claim *94so obscures tbe respondent’s rights under said judgment, that no sale can be made to produce anything.

It is entirely immaterial that respondent has, since said judgment, offered to pay Hotchkiss what might be due him. Until a sale had taken place under the judgment, and respondent had become the purchaser thereat of Mrs. Shilling’s interest, Hotchkiss was bound to account to and to convey to her, not to the respondent. Respondent’s judgment would not prevent her from paying Hotchkiss and taking a deed. That would not injure respondent. She would still hold the title in trust for him to the extent of his claim. Such payment and deed would be for his benefit.

The respondent was willing to pay Hotchkiss, if the latter would give him a deed of the land, subject to Mrs. Shilling’s bond, and assign to him his claim for the unpaid purchase money, but not otherwise. But his judgment entitled him to nothing of the kind, and, aside from any judgment entitling him thereto, respondent could no more require Hotchkiss to do so, than a second mortgagee could require the first to assign his note and mortgage to him, as a condition of receiving his money.

What respondent’s right would have been on a complaint, charging the fraudulent and collusive suit and judgment to cancel the bond for non-payment of said purchase money, and the other fraudulent acts of Hotchkiss and Mrs. Shilling supposed by him in his brief, we need not inquire.

Under no possible construction of the complaint would such facts be admissible in evidence. We think the court below erred in overruling the demurrers, and that the order appealed from must be reversed.