American Exchange Bank of Duluth v. Davidson
| Citation | 72 N.W. 129,69 Minn. 319 |
| Decision Date | 08 September 1897 |
| Docket Number | 10,549--(214) |
| Parties | AMERICAN EXCHANGE BANK OF DULUTH v. ANDREW D. DAVIDSON and Others |
| Court | Supreme Court of Minnesota (US) |
Appeal by defendants Flora Smith and Basil D. Brown, as assignee of Otis W. Saunders and Elizabeth P. Saunders, from an order of the district court for St. Louis county, Moer, J., granting the motion of defendant Andrew D. Davidson, as assignee of the State Bank of Duluth, insolvent, to strike out portions of their answers. Affirmed.
Order affirmed.
William C. White, for appellants.
Schmidt Reynolds & Mitchell, for respondents.
OPINION
This cause is before us upon the appeal of the defendants Brown and Smith from an order striking out portions of their answers as irrelevant and redundant, upon the motion of their co-defendant Davidson.
The allegations of the complaint are to the effect following That on April 20, 1891, Otis W. and Elizabeth P. Saunders the then owners of two certain lots in the city of Duluth, duly executed to Angus R. Macfarlane a mortgage, which became and was a first lien on the lots, in the sum of $ 46,000; that afterwards, and on November 28, 1891, the same mortgagors duly executed to H. A. Ware a mortgage on the same lots, which became and was a second lien thereon, to secure $ 2,300; that on December 9, 1892, they duly executed to the plaintiff a mortgage on the lots, which became and was a third lien thereon, to secure $ 5,000, and July, 1893, they gave a mortgage to the State Bank of Duluth on the same premises, which became and was a fourth lien thereon, to secure $ 5,762; that thereafter the mortgagors made an assignment for the benefit of their creditors, under the insolvency laws of the state, to the defendant Basil D. Brown, and the mortgagee the State Bank made a like assignment to the defendant Andrew D. Davidson; that on March 5, 1895, the first mortgage was duly foreclosed by advertisement, and the lots purchased in the name of the mortgagee Macfarlane, as trustee for the benefit of the plaintiff and others, for $ 2,158.10, who afterwards conveyed the lots to the plaintiff; that on the same day the third mortgage (the one given directly to the plaintiff) was also duly foreclosed, and the lots purchased by the plaintiff for $ 3,634.12; and that the second or third mortgage was duly assigned to the plaintiff prior to March 5, 1896.
The complaint further alleges that in February, 1896, the defendant Davidson, as assignee, entered into negotiations with the plaintiff with reference to a conveyance by it of the mortgaged premises to the defendant Smith, the daughter of the mortgagors, who would give a mortgage thereon, with other lands owned by her, to the plaintiff, for the amount of all of the several mortgage liens, which amount was to be further secured by the personal obligation of Thorson and Hall, the president and vice president, respectively, of the State Bank; that Davidson, by his representations and conduct, led the plaintiff to believe that he could not, and did not intend to, redeem from the foreclosure sales, but would rely for his protection upon the proposed negotiations, whereby his mortgage would be paid by the plaintiff, in case such negotiations were consummated; that, induced and deceived thereby, the plaintiff refrained from filing any notice of redemption from the first foreclosure sale, and redeeming therefrom, but that Davidson, as assignee, fraudulently abandoned such negotiations, filed a notice of redemption by virtue of the mortgage to the State Bank, and redeemed from the first foreclosure sale, without paying the plaintiff's two intervening mortgages, and thereupon received and recorded the usual certificate of redemption. The complaint also alleges that the plaintiff is informed and believes that the defendants Smith and Brown, as such assignee, claim some interest in the property which is the subject of this action, and prays that Davidson's attempted redemption and the certificate be adjudged void, and the record thereof canceled, and, further, that none of the defendants acquired any interest in the property by virtue of such redemption.
The answer of the defendant Davidson admits the existence of the several mortgages and the two foreclosure sales set forth in the complaint, and that he redeemed from the first sale as the assignee of the mortgagee the State Bank, but denies all of the allegations of the complaint as to fraud on his part, and alleges that he is the owner of the lots in question, which are of the value of $ 10,000, and that the defendants Smith and Brown, as assignee, claim some interest in or lien on the lots, but in fact neither of them has any interest in or lien on the lots, and prays judgment that, as assignee, he is the owner of the lots, and that the plaintiff and the other defendants have no interest in or lien thereon.
The defendant Brown, as assignee, and defendant Smith answered separately. Their answers are practically...
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