Ahern v. Freeman

• Decision Date: 11 May 1891
• Citation: 46 Minn. 156
• Parties: SIMEON J. AHERN <I>vs.</I> DUDLEY W. FREEMAN and others.
• Court: Minnesota Supreme Court

46 Minn. 156

SIMEON J. AHERNvs.

DUDLEY W. FREEMAN and others.

Supreme Court of Minnesota.

May 11, 1891.

Appeal by plaintiff from a judgment of the district court for Ramsey county, where the action was tried by Brill, J.

Williams, Goodenow & Stanton, for appellant.

T. R. Palmer, for respondent Freeman.

John B. & W. H. Sanborn, for respondents Tarbox, Schliek & Co.

GILFILLAN, C. J.

November 22, 1886, plaintiff purchased from one Wright two lots, and at his request the latter on that day conveyed the same to one Doolittle. Plaintiff paid part of the price, and to secure the remainder Doolittle executed to Wright four notes, and to secure two of them a mortgage on one lot, and to secure the other two a mortgage on the other lot. On said day the deed of conveyance and mortgages were recorded. At the time of the transaction plaintiff verbally agreed with Doolittle to pay the notes, and hold him harmless from liability thereon. April 16, 1887, Doolittle conveyed the lots to one Freeman, by deed which recited that the lots were conveyed subject to the mortgages, and that Freeman assumed and agreed to pay them as part of the purchase price. The deed was recorded May 10, 1887. On said April 16th Freeman executed to plaintiff his note and a mortgage on the two lots to secure the same, which mortgage was recorded on said May 10th. This mortgage contained the usual covenants, but from the covenant against incumbrances were expressly excepted the aforesaid mortgages to Wright. Afterwards, by deed recorded May 16, 1887, Freeman conveyed the lots to one Zwickey, the deed reciting that the grantee assumed and agreed to pay the mortgages. October 20, 1888, plaintiff foreclosed his mortgage under a power of sale contained in it, and became the purchaser at the sale. January 19, 1889, Tarbox, Schliek & Co. recovered a judgment, docketed the same day, against Zwickey. November 10, 1888, plaintiff paid the mortgages to Wright, and the latter executed certificates of satisfaction thereof, which plaintiff filed for record, and they were recorded July 17, 1889. September 25, 1889, Tarbox, Schliek & Co. filed notice of their intention to redeem under their said judgment from said mortgage sale, and they did so redeem October 23, 1889, and on the same day their certificate of redemption was recorded. They made the redemptions relying on the recorded satisfactions, and without notice that the mortgages had been paid by plaintiff. The action is in effect for a personal judgment against Freeman and Zwickey for the amount paid by plaintiff upon the mortgages to Wright; that those mortgages be reinstated; that plaintiff be adjudged to be subrogated to the rights of the mortgagee, and the mortgages foreclosed. There was no service on Zwickey, so that plaintiff's rights as to him are not involved. The court below rendered judgment in favor of the other defendants.

Plaintiff does not seriously claim here that he has a right to recover against Freeman. We cannot see upon what he could base such a claim, in the face of the exception of the mortgages he has paid from the covenant against...