Albert Johnson v. August Sandhoff And Another
| Decision Date | 06 February 1883 |
| Citation | 14 N.W. 889,30 Minn. 197 |
| Parties | Albert Johnson v. August Sandhoff and another |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Hennepin county, refusing a new trial, after a trial by Vanderburgh J., without a jury. The case is stated in the opinion.
Benton & Roberts, for appellant, cited Thompson v. Morgan, 6 Minn. 199, (292;) Parret v. Shaubhut, 5 Minn. 258 (323;) Ross v. Worthington, 11 Minn. 323, (438;) Meighen v. Strong, 6 Minn. 111, (177;) Everest v Ferris, 16 Minn. 14, (26.)
Levi Cray & Hart and Robinson & Bartleson, for respondent.
This is an action in the nature of ejectment. The land in controversy was originally owned by Haley, who, on May 9, 1857, mortgaged it to Wyman. The mortgage had but one witness, but it was, nevertheless, recorded on May 16, 1857. It was conditioned "to pay the sum of dollars, according to the conditions of two promissory notes made by me, bearing even date herewith." As to this defect of the unfilled blank, as well as in regard to the discrepancy of dates, we are not inclined to question the finding of the trial court, "that it sufficiently appears what notes were intended to be secured," viz., two notes made by Haley to Wyman, dated May 9, 1857, -- one, for $ 36, payable in six months; the other, for $ 236, in one year. September 5, 1857, Haley conveyed the land to Richard Fewer by deed of warranty, recorded October 19, 1857. At the time of his purchase Fewer was informed by Haley of the mortgage, and had actual notice thereof, and allowance for the mortgage was made in the consideration paid or allowed by him (Fewer) for the land, and in the words of the finding Fewer "held said land subordinate to said mortgage, as he well knew."
On or about August 27, 1859, Wyman, through Stewart, who acted "for him and as attorney," foreclosed the mortgage by advertisement. The foreclosure proceedings were in form regular, the premises being bid in for and in the name of Wyman for $ 424. The proper certificate and foreclosure papers were duly made and recorded as and for a regular foreclosure of the mortgage. Wyman, through an attorney in fact, on July 11, 1860, conveyed the premises by quitclaim deed to Russell, who, on November 16, 1864, conveyed the same to Stewart, with Wyman's approval, and both deeds were duly recorded. On June 30, 1868, Stewart conveyed the land to the defendant for $ 400 in cash, which sum Wyman received in full, "besides commissions paid to agents." From the time when, before the foreclosure proceedings were commenced, the notes secured by the mortgage were handed to him by the agent of Wyman, (a non-resident,) down to and including his conveyance to defendant, Stewart acted as Wyman's agent and attorney. Defendant, upon his purchase on June 30, 1868, went into possession of the premises peaceably and in good faith, and without, so far as appears, any objection or opposition, and has since made valuable improvements thereon.
Richard Fewer died intestate June 19, 1866, and his widow, Joanna Fewer, was appointed administratrix. Pending proceedings in the probate court for sale of the decedent's real estate, Stewart, who had previously (as we have seen) sold the premises to defendant, suggested to the probate judge the propriety of including the same (which had not been inventoried by the administratrix) in the list of lands licensed to be sold at the same time, stating that while "Fewer's interest did not amount to anything," yet, if included and sold, he would procure a purchaser for $ 100. The premises were included in the license, and, upon sale, were struck off to Lowry. The bid was made in Lowry's name by Stewart, the consideration being in fact paid by plaintiff. Lowry's connection with the business appears to have been merely nominal, and, having received a deed from Joanna Fewer as administratrix, as also her individual quitclaim deed, (both recorded December 15, 1868,) he quitclaimed to plaintiff on December 11, 1874. The trial court finds, upon what appears to be satisfactory evidence, that "plaintiff and Stewart were and are jointly interested in the venture."
Concisely stated, we take the effect of all this to be: (1) That Fewer took the premises with full knowledge and notice of the mortgage to Wyman, and subject to the same. (2) That Stewart and the plaintiff, for whom, as well as for himself, Stewart is to be regarded as acting, took with like knowledge and notice, and also subject to the Wyman mortgage. (3) That the mortgage, although defective for want of a second witness was not therefore void, but was valid as against Haley and persons having notice like Fewer, Stewart, and the plaintiff. Morton v. Leland, 27 Minn. 35, 6 N.W. 378; and see, also, Ross v. Worthington, 11 Minn. 323, (438.) (4) That the mortgage, not being entitled to record, (on account of the defective attestation,) was, therefore, not entitled to be foreclosed by advertisement, (Ross v. Worthington, supra; Thorp v. Merrill, 21 Minn. 336;) and the attempted foreclosure was, therefore, as a foreclosure, abortive. (5) That though the foreclosure was, as such, abortive and ineffectual, it may, in the circumstances of this case and in connection with the subsequent conveyances culminating in the deed from Stewart to the defendant, properly take effect as a transfer to defendant of Wyman's rights as mortgagee. (6) That defendant, by virtue of such transfer, occupies the position of a mortgagee in possession after condition broken, -- one who took possession lawfully while the mortgage was in life and force, and whose mortgage has not been paid. That ejectment will not lie against him is elementary, and hence the court below was right in its conclusion that the plaintiff...
To continue reading
Request your trial