Dixon v. Merritt
| Decision Date | 11 January 1875 |
| Citation | 21 Minn. 196 |
| Parties | William H. Dixon v. James H. Merritt & others |
| Court | Minnesota Supreme Court |
[Syllabus Material]
Complaint, in the usual form, under the statute for determining adverse claims to real property. Gen. Stat., ch 75. Answer, that on August 22, 1860, defendants became owners in fee of the real estate described in the complaint, and continued such owners until November 4, 1870, when they conveyed with warranty to one Kent; concluding with a prayer that plaintiff be decreed to have no interest in said real estate. Trial in the district court for Dakota county, before Crosby, J., (a jury being waived,) who found the following facts: On September 13, 1855, one Anna E. Agnew was the owner in fee of the land in question, and on that day she joined with her husband, Edward C. Agnew, in mortgaging the same to one Bidwell, to secure a debt of her said husband. Anna E. Agnew was born July 7, 1837, and was an infant at the time of the execution of this mortgage. Pursuant to a power of sale contained therein and recorded therewith, this mortgage was foreclosed by advertisement, and the land sold to the defendants on August 22, 1859, and at the expiration of the year of redemption, the usual sheriff's deed was made and recorded. On November 4, 1870, the defendants conveyed to Kent, as stated in the answer.
On February 12, 1863, Mrs. Agnew, by her next friend, brought an action against these defendants in the district court for Dakota county, alleging that the mortgage to Bidwell was given to secure a loan of money from Bidwell to her husband, for his separate use; that on May 4, 1858, Bidwell assigned the mortgage and the notes secured thereby to the defendants; that afterwards and on the same day, without the knowledge or consent of plaintiff, the defendants and Edward C. Agnew computed the amount then due on said notes, and for this amount and an additional amount of money then and there loaned to Edward C. Agnew, the defendants received from him four joint notes of him and of one William K. Dixon, secured by mortgage upon the real estate of the latter; that on August 22, 1859, defendants foreclosed the mortgage executed by plaintiff, and purchased the real estate therein described, and have recorded the proper evidence of foreclosure and purchase in the office of the register of deeds, etc., where the same remains of record and a cloud upon her title; that defendants have never cancelled the mortgage executed by her, nor conveyed the land, but have possession thereof, and claim the title thereto in fee: wherefore plaintiff prays that said mortgage of her real estate be ordered to be satisfied of record, that the foreclosure proceedings be declared null and void, that she be restored to her former estate and possession in said premises, and for general relief. In their answer to this complaint, the defendants put in issue the allegations of plaintiff's ownership at the date of the mortgage, and those relating to the consideration of the mortgage, and to plaintiff's knowledge of and consent to the transaction between themselves, Dixon and Edward C. Agnew. Palmer, J., before whom the case was tried without a jury, found the facts to be as alleged in the complaint, except that he was unable to find, from the evidence, the purpose for which the money loaned by Bidwell to Edward C. Agnew was borrowed; nor could he find whether or not plaintiff was aware of the exact nature of the transactions between defendants and E. C. Agnew and Dixon, or consented to the execution of the notes and mortgage then made; but he found that she had knowledge of the fact of the execution of the mortgage and joint notes, and further found that there was no agreement that these notes and mortgage should take the place of or annul the note and mortgage of plaintiff, or that there should be any delay in enforcing payment of plaintiff's note and mortgage. As conclusions of law, the judge found that plaintiff's mortgage was a valid and subsisting lien, and was not released, nor was its immediate foreclosure prevented, by the transactions between defendants and E. C. Agnew and Dixon; that plaintiff was not entitled to the relief sought, or to any relief in the action, and that defendants were entitled to judgment of dismissal. Judgment for costs was entered in favor of defendants, which, upon appeal, was affirmed by this court. Agnew v. Merritt, 10 Minn. 308.
On September 9, 1865, Anna E. Agnew was divorced from Edward C. Agnew, and on April 26, 1866, she conveyed the land in question to the plaintiff by warranty deed, which land at the commencement of this action was vacant and unoccupied.
The money borrowed of Bidwell, and which the said mortgage was given to secure, was borrowed and used by Edward C. Agnew, husband of Anna E., and no part of it was used for her benefit.
As a conclusion of law, the judge found that the plaintiff was entitled to the relief prayed in his complaint, and ordered judgment accordingly. A motion for a new trial was denied, and defendants appealed.
Order denying new trial affirmed.
I. V. D. Heard, for appellants.
A. R. Capehart, for respondent.
The mortgage involved in this action was made September 13, 1855 by Anna E. Agnew, owner in fee simple of the premises mortgaged, and an infant feme covert, and Edward C. Agnew, her husband. The statute then in force, Rev. Stat., ch. 46, § 2, provided that "a husband and wife may, by their joint deed, convey the...
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