Aultman & Taylor Co. v. Pikop
| Decision Date | 17 February 1894 |
| Docket Number | 8489 |
| Citation | 58 N.W. 551,56 Minn. 531 |
| Parties | Aultman & Taylor Co. v. Ole A. Pikop et al |
| Court | Minnesota Supreme Court |
Argued January 10, 1894.
Appeal by plaintiff, Aultman & Taylor Co., a corporation, from a judgment of the District Court of Becker County, D. B Searle, J., entered September 20, 1893.
Samuel H. Dalen owned the northeast quarter of Section fourteen (14) T. 140, R. 42, in Becker County. The east half was his homestead on which he resided with his family. On December 6 1883, he and his wife Kjerste H. Dalen executed a mortgage on the whole quarter section to Johnson Land & Mortgage Co., a corporation, to secure the payment of $ 660 borrowed of it that day by him. On July 30, 1887, Dalen and wife conveyed the land to Anders O. Pikop, the wife's brother, subject to the mortgage and he and his wife reconveyed it August 10 1889, to Dalen's wife, Kjerste H. Dalen.
On November 15, 1888, Kjerste H. Dalen and husband conveyed the land to her nephew, the defendant Ole A. Pikop, subject to the mortgage on which was then due over $ 700. He paid off the mortgage December 6, 1888, by making a new one on the land for $ 690 to the same Johnson Land & Mortgage Co. On June 19, 1891, the plaintiff recovered a judgment against Samuel H. Dalen and Kjerste H. Dalen for $ 441.61 upon a debt incurred prior to the deed to Anders O. Pikop. Execution was issued and returned unsatisfied.
On November 28, 1891, the plaintiff commenced this action against Ole A. Pikop, Samuel H. Dalen and Kjerste H. Dalen to set aside the deeds claiming they were all made and taken with intent to hinder, delay and defraud the creditors of Dalen and wife. Ole A. Pikop alone answered. Specific questions of fact were submitted to a jury, and in answer thereto they found the conveyances were made without consideration and to hinder, delay and defraud the creditors of Samuel H. Dalen; that the east half of the land was his homestead and worth $ 1,800; that the value of the west half was but $ 700. The court accepted the verdict and ordered judgment for defendants dismissing the action on the merits with costs. Judgment was so entered and plaintiff appeals.
Judgment affirmed.
Spooner & Taylor, for appellant.
J. W. Reynolds, for respondent.
OPINION
This case comes within Baldwin v. Rogers, 28 Minn. 544, (11 N.W. 77;) Horton v. Kelly, 40 Minn. 193, (41 N.W. 1031;) and Blake v. Boisjoli, 51 Minn. 296, (53 N.W. 637,) -- in which it was held that a creditor is not defrauded by his debtor conveying real estate incumbered beyond its value, and that the conveyance is not void, though made with intent to defraud such creditor, -- and must be controlled by those decisions.
Judgment affirmed.
Canty J. I dissent from the opinion of the majority in this action. The decision of the majority requires every one of the following propositions to sustain it:
To sustain it, it must be held, as a presumption of law: (1) That the mortgage will never be paid. (2) That it will be foreclosed. (3) That the mortgagor will exercise his right to compel the mort gagee to sell the unexempt part of the mortgaged premises first. (4) That such unexempt part when so sold, will sell for its full value. (5) That such unexempt part will never rise in value during the year...
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