Bank of Benson v. Hove

• Decision Date: 12 December 1890
• Citation: 45 Minn. 40
• Court: Minnesota Supreme Court
• Parties: BANK OF BENSON <I>vs.</I> OLOF T. HOVE.

45 Minn. 40

BANK OF BENSON vs. OLOF T. HOVE.

Supreme Court of Minnesota.

December 12, 1890.

Replevin, brought in the district court for Swift county, for a horse of the value of $100, plaintiff claiming under a senior, and defendant under a junior, mortgage from one Holzheimer. At the trial, before Powers, J., the plaintiff had a verdict. The defendant appeals from an order refusing a new trial.

E. T. Young, for appellant.

Foland & McCune and Frank M. Thornton, for respondent.

VANDERBURGH, J.

The horse in controversy here is claimed by the plaintiff under a chattel mortgage, which, it is alleged, covered the same, and other personal property. The rest of the property included therein had been, prior to this action, taken and sold, and the net proceeds applied on the mortgage debt, leaving a balance still due. The defendant admits that the balance due was the sum of $51.65, while the plaintiff claims to be entitled to deduct $10 from the proceeds of the sale, under the stipulation in the mortgage allowing him an attorney's fee to that amount, which the defendant is unwilling to concede. At the time of the commencement of this action, the horse was in the possession of the defendant, who had taken it upon a second mortgage, and, it seems, was delivered to the plaintiff in proceedings for the claim and delivery thereof in this action. It is admitted that after this action was brought, and before answer, the defendant tendered to the plaintiff the sum of $52.55 in satisfaction of his demand, but the tender was not kept good, and the money is not brought into court. The plaintiff alleges in his reply that the tender was made after the horse had been sold under foreclosure proceedings upon his mortgage, but this is not shown.

1. The evidence was sufficient to justify the finding of the jury that the horse in controversy was included in the description in the plaintiff's mortgage. The verdict is not, however, necessarily inconsistent with the claim of the defendant that the same horse was also described in his mortgage, and was properly identified on the trial.

2. It is claimed by the defendant that the effect of the tender was to discharge the lien of the plaintiff's mortgage, and was, therefore, a bar to his recovery in the action. To effect this result, it must be made very clearly to appear that a sum sufficient to cover the whole amount due, together with costs, was absolutely and unconditionally tendered. The evidence tends to show that the plaintiff demanded the possession of the horse from defendant; that, upon his refusal to deliver it up, this action of replevin was brought, and the animal delivered to the plaintiff by the sheriff. It is sufficiently clear that there were some expenses incurred, including the fees of the sheriff, which were not included in the sum tendered. As the defendant is invoking the application of the harsh rule of a discharge of the mortgage without keeping the tender good, he must be held to strict proof of the tender. We think the evidence insufficient to establish it. Tuthill v. Morris, 81 N. Y. 94; Moore v. Norman, 43 Minn. 428, (45 N. W. Rep. 859.) This renders it unnecessary to consider the further point made that, under the circumstances of this case, — that is, after suit brought and a delivery of the property to the plaintiff therein, — it was necessary to keep the tender good in order to defeat plaintiff's action and secure a return of the property to the defendant.

3. It is stipulated in the mortgage that the mortgagee may retain, out of the proceeds of the sale upon foreclosure, "an attorney's fee of $10, and such other expenses as may have been incurred, returning the surplus money, if any, to the mortgagor." Under this stipulation, the mortgagee is...