Benson v. Markoe

• Decision Date: 25 June 1889
• Parties: BENSON v MARKOE.
• Court: Minnesota Supreme Court

41 Minn. 112

42 N.W. 787

BENSONvMARKOE.

Supreme Court of Minnesota.

June 25, 1889.

(Syllabus by the Court.)

After the execution, delivery, and record of a quitclaim deed, the legal effect of which is to release and discharge a mortgage of record, the mortgagee cannot foreclose the mortgage by advertisement. Such foreclosure proceedings are void and of no effect.

Appeal from district court, Ramsey county; BRILL, Judge.

For statement of facts, see opinion on former appeal, 33 N. W Rep. 38.

Biggs, Hamilton & Rodgers, (H. J. Horn, of counsel,) for appellant.

R. J. Markoe and S. J R. McMillan, for respondent.

COLLINS, J.

From an order overruling a general demurrer to the complaint in the above-entitled action the defendant appealed to this court, whereupon the order was affirmed. 37 Minn. 30,33 N. W. Rep. 38. Upon issues of fact thereafter made in the district court the case was tried by the court, without a jury, resulting in findings to the effect that all of the allegations of the complaint were true. In addition to the allegations in said complaint stated in the former opinion, it was averred, and by the court found true, that, after the delivery and record of the quitclaim deed, the legal effect of which was to discharge and release the mortgage, the above-named plaintiff, mortgagee, proceeded to foreclose the same by advertisement, in accordance with a power therein contained; that the proceedings were sufficient in form to effect a foreclosure; that at the sale, which was on February 17, 1886, the mortgaged premises were bid in by the plaintiff; that no redemption has been made from the sale; and that neither mortgagor nor mortgagee intended to release said mortgage by means of the quitclaim deed, which bore date April 15, 1885. The court determined, as conclusions of law, that, as the legal effect of the deed was to release the mortgage, the foreclosure proceedings were void; that in equity the effect of the deed should be limited to the conveyance of that portion of the land therein described which was not included in the descriptive part of the mortgage; that judgment should be entered so limiting the deed; for reinstating the lien of the mortgage; for the amount due thereon; and also directing a sale of the mortgaged premises in the usual manner. From a judgment entered upon these conclusions plaintiff appeals, asserting, as erroneous, that part of the judgment which declares the foreclosure by advertisement void and of no...