Berthold v. Fox
| Decision Date | 01 January 1868 |
| Parties | PIERRE H. BERTHOLD v. PATRICK FOX and others. |
| Court | Minnesota Supreme Court |
that Fox and one Taylor owned the land on which the logs were cut; and June 16, 1858, executed to one Amedee Berthold a mortgage thereon with the usual power of sale. The mortgage was foreclosed under the power August 20, 1864, plaintiff becoming the purchaser. The defendants Fox and O'Brien cut the logs from the land in the years 1862, 1863, 1864, and 1865, without the knowledge or consent of the mortgagee or plaintiff, removed them from the land, and transferred some to Folsom and some to Holman. It alleges that the mortgagors delivered possession of the land to the mortgagee, who went into possession under the understanding and agreement that he was to hold possession till the debt secured by the mortgage was paid. A demurrer by the defendant Holman was sustained, and the decision affirmed by this court. Berthold v. Holman, 12 Minn. (Gil.) 221. The other defendants answered. On the trial the plaintiff offered to prove the allegations of the complaint, but, the defendants objecting, the evidence was excluded. The defendants then gave evidence of the value of the logs.
Defendants had a verdict.
Cornman & Stickney, for appellant.
H. N. Setzer, for respondents.
This case comes before us on an appeal from an order denying the plaintiff a new trial.
Great stress is laid by the appellant on the alleged fact "that at the time the mortgage was executed and delivered the possession of the land described in said mortgage was actually delivered to the mortgagee, (who assigned to the plaintiff,) and remained in him and his assignee, the plaintiff, as in the complaint set forth."
The complaint on this point alleges that on the sixteenth day of June, 1858, the owner of the land conveyed it to Amedee Berthold, under whom the plaintiff holds, and "that at the time of the execution and delivery of said mortgage, as aforesaid, the said Nathan C. D. Taylor and defendant Patrick Fox (mortgagors) did then and there deliver to said Amedee Berthold full and entire possession of said lands conveyed by said mortgage, and the said Amedee Berthold then and there entered into full possession thereof under the mutual understanding and agreement by and between the said mortgagors and said Berthold, that he should have and hold possession of said lands until the money received by said mortgagor should be paid and said mortgage fully satisfied l." It is not alleged that the mortgagee remained in possession even one day, or that he assigned or conveyed, or attempted to assign or convey, to the plaintiff, his assignee, the possession, or right of possession, or that the plaintiff ever was in possession. The evidence offered, therefore, would at best have only shown that the plaintiff's grantor was in possession for an indefinite period of time, and from the facts alleged in the complaint it is apparent that at least during the years 1862, 1863, 1864, and 1865 neither he nor the plaintiff was in possession. It is not pretended that a right to the possession was secured to the mortgagee by any covenant or stipulation in the mortgage, or by any written agreement, and it is a rule of evidence that in the absence of fraud or mistake, parol evidence is inadmissible to vary a written contract. The writing is conclusively presumed to set forth the whole agreement of the parties, and the extent and nature of the agreement.
The appellant, therefore, could not have been permitted to prove by parol, for the purpose of varying the mortgage, any understanding prior to, or contemporaneous with its execution, and fraud or mistake not being alleged, the terms of the mortgage bounds the rights and liabilities of the parties. It is settled in this state that ordinarily the owner of a mortgage of real estate is not entitled, before a...
To continue reading
Request your trial
- Shaughnessy v. Eidsmo
- Bateman v. Hopkins
- Stitt v. Rat Portage Lumber Co.
- Beddow v. Flage