Bradley v. Norris
| Decision Date | 13 December 1895 |
| Docket Number | 9502--(43) |
| Citation | 65 N.W. 357,63 Minn. 156 |
| Parties | ALVA W. BRADLEY v. MICHAEL NORRIS and Others |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for St Louis county, C. L. Lewis, J., denying a motion for a new trial. Reversed and remanded with directions to amend conclusions of law and to direct judgment in favor of plaintiff.
The court found as facts, among other things, that in defending the action of Burke v. Backus, referred to in the opinion Edward J. Bradley necessarily expended for costs and attorney's fees $ 804.05, and that after the judgment therein plaintiff and said Edward J. Bradley paid to Henry M Backus the amount of said attorney's fees. As conclusions of law the court found: That plaintiff was entitled to recover of and from defendant, Simon Clark, $ 7,604.05 with interest on $ 6,800 from February 7, 1887, and interest on $ 804.05 from January 5, 1894, together with plaintiff's costs and disbursements; and that defendants, Michael Norris Mary Norris and Maggie Clark were entitled to judgment against plaintiff for their costs and disbursements.
Order reversed, and cause remanded, with directions to the court below to amend its conclusions of law in accordance with this opinion, and to direct judgment to be entered in favor of plaintiff and against defendants for $ 6,800, with interest from February 7, 1887.
Billson, Congdon & Dickinson, for appellant.
Defendants at the date of their deed did not own the land or have a right to convey it. The right to foreclose and the right to redeem are reciprocal or commensurable only in the sense that the same period of limitation will be applied to the latter which is by law imposed upon the former. In order to acquire title by possession, the mortgagee must have been possessed for the full statutory period; since it is only from his entry into possession with the mortgagor's consent that the limitation begins to run in his favor. The origin of the phrase that "the right to foreclose and the right to redeem are reciprocal" is found in certain early cases in which it was a question whether a transaction was a mortgage in which one conveying lands, though under no obligation to repay the purchase money, yet had a right to reclaim if he chose to repay, and in which cases it was held that to constitute a mortgage the remedy must be reciprocal. Copleston v. Boxwill, 1 Ch. Cas. 1, 12 Car. 2; Gorey's Case, 3 Salk. 240; Croft v. Powel, Comyns, 604; Bonham v. Newcomb, 2 Vent. 364; Newcomb v. Bonham, 1 Vern. 7, 214, 232; 1 Powell, Mortg. 386. See Coote, Mortg. 26. The phrase was subsequently misused in some cases. Caufman v. Sayre, 2 B. Mon. 202; 2 Hilliard, Mortg. §§ 1-3, 9-11; Koch v. Briggs, 14 Cal. 256; Holton v. Meighen, 15 Minn. 50 (69); King v. Meighen, 20 Minn. 237 (264); Parsons v. Noggle, 23 Minn. 328; Meighen v. King, 31 Minn. 115, 16 N.W. 702; Holton v. Bowman, 32 Minn. 191, 19 N.W. 734; Banning v. Sabin, 45 Minn. 431, 48 N.W. 8; Miller v. Smith, 44 Minn. 127, 46 N.W. 324; Fisk v. Stewart, 26 Minn. 365, 4 N.W. 611; Johnson v. Sandhoff, 30 Minn. 197, 14 N.W. 889; Rogers v. Benton, 39 Minn. 39, 38 N.W. 765; Jellison v. Halloran, 44 Minn. 199, 46 N.W. 332; Russell v. Akeley Lumber Co., 45 Minn. 376, 48 N.W. 3.
At common law the mortgagee took the legal estate with right to possession; but in equity, even after breach of condition, the mortgagor might be relieved. A foreclosure proceeding was nothing but a suit in equity to have a time limited by decree within which the right of redemption might be exercised or extinguished. If no foreclosure proceedings were taken, the right to redeem continued indefinitely until the mortgagee had been in actual possession for 20 years without recognizing as subsisting the relation of mortgagor and mortgagee. In New York, however, and in some other states, it was held that the legal estate did not vest in the mortgagee till after breach of condition, though the right of possession passed at the date of the mortgage. 2 Wood, Limitations, § 225; Id. § 222, p. 546 (449), note 2, and cases cited; Angell, Limitations, § 456; Barron v. Martin, 19 Ves. 327; Robinson v. Fife, 3 Oh. St. 551; Demarest v. Wynkoop, 3 Johns. Ch. 129; Blake v. Foster, 2 Ball & B. 387; Howland v. Shurtleff, 2 Metc. (Mass.) 26; Slicer v. Bank of Pittsburg, 16 How. 571; Moore v. Cable, 1 Johns. Ch. 385; Hughes v. Edwards, 9 Wheat. 489. But any act of the mortgagee, even though he were in possession, by which he acknowledged the transaction to be still a mortgage at any time within twenty years and before a bill to redeem, was nevertheless held sufficient to keep the right to redeem alive. Angell, Limitations, § 485, and cases cited; Wood, Limitations, § 235, and cases cited. A purely parol acknowledgment unaccompanied by any overt act would, however, be insufficient to keep the mortgage alive. Wood, Limitations, § 235. But even after the title of the mortgagee had matured and the right to redeem had been barred, the mortgagee might waive the right thus acquired, and he was construed to do so, if, for example, he commenced an action to foreclose. Angell, Limitations, § 458; Ord v. Smith, Cas. t. King, 9; Conway v. Shrimpton, 5 Bro. P. C. 187. On the other hand, if the mortgagor remained in possession, the right to redeem continued indefinitely. Angell, Limitations, § 462; Jackson v. Wood, 12 Johns. 242; Burke v. Lynch, 2 Ball. & B. 426. And it was almost as universally recognized that after such possession by the mortgagor for twenty years without payments on the mortgage debt or other act recognizing the mortgage, the debt was presumed to have been paid, and the title revested in the mortgagor. Angell, Limitations, § 468; Jackson v. Wood, supra; Hughes v. Edwards, supra; Giles v. Baremore, 5 Johns. Ch. 545; Angell, Limitations, § 466, and cases.
The right to entertain a suit to redeem from a mortgage (which purports upon its face to be such) does not arise in the present state of our law until the mortgagee has gone into possession, so that until then the limitation upon such suit does not begin. Wood, Limitations, § 224; 2 Jones, Mortg. § 1156; Waldo v. Rice, 14 Wis. 286; Knowlton v. Walker, 13 Wis. 264; Montgomery v. Chadwick, 7 Iowa, 114; Hubbell v. Sibley, 50 N.Y. 468; Miner v. Beekman, 50 N.Y. 337; Peabody v. Roberts, 47 Barb. 91. If there is any cause of action in favor of a mortgagor, whether popularly denominated an action to redeem or otherwise, which arises at the maturity of the mortgage indebtedness, it is an entirely different cause of action from that which arises in his favor upon the entry of the mortgagee into the possession of the property. See Kortright v. Cady, 21 N.Y. 343; Bruce v. Tilson, 25 N.Y. 194. A mortgagor who after the mortgage, either gratuitously or for a consideration, awards to the mortgagee the possession to which he was not before entitled, thereby gives an additional security, for redemption from which a right of action cannot accrue until the possession is taken. Raynor v. Drew, 72 Cal. 307, 13 P. 866; Spect v. Spect, 88 Cal. 437, 26 P. 203; Bullion & Ex. Bank v. Otto, 59 F. 256. See, also, Henry v. Confidence Mining Co., 1 Nev. 619. The mortgagee by entry can acquire no rights unless such entry is with the mortgagor's assent. Rogers v. Benton, supra; Russell v. Ely, 2 Black, 575; Newton v. McKay, 30 Mich. 380; 26 Albany Law J. 526, 27 Albany Law J. 6; Gill v. Newell, 13 Minn. 430 (462); Atkins v. Little, 17 Minn. 320 (342); 1 Lead. Cas. Eq. 732; 53 Am. Dec. 541, note; Siebert v. Leonard, 17 Minn. 410 (433); McClay v. Gluck, 41 Minn. 193, 42 N.W. 875.
As between the limitation on foreclosure by action, and that on foreclosure by advertisement, it is by reference or analogy to the longest of these limitations, that the limitation upon the right to redeem must be determined. In the case of Bierman this was the fifteen years allowed for foreclosure by advertisement.
Upon the findings Bierman cannot be deemed to have become a mortgagee in possession of this land earlier than 1878, so that title could not have accrued to his grantees as mortgagees in possession until 1893; prior to which time, to-wit: May 13, 1892, such incipient rights, if any, as the grantees of Bierman had acquired, were lost by the adverse judgment in Burke v. Backus, 51 Minn. 174, 53 N.W. 458; Morris v. McClary, 43 Minn. 346, 46 N.W. 238. Tracts which merely corner upon each other are separate and distinct parcels, so that possession of one cannot be regarded as possession of the other. Kresin v. Mau, 15 Minn. 87 (116); Bunker v. Locke, 15 Wis. 635; Lester, Land Regulations, No. 408, p. 360; Linn Co. Bank v. Hopkins, 47 Kan. 580, 28 P. 606; Thompson, Homesteads, §§ 120, 145, 147.
For breach by defendants of their covenants of seisin and right to convey, the prima facie measure of damages is the purchase price with interest. See Smith v. Compton, 3 B. & Ad. 407; Wilson v. Northampton Ry. Co., L. R. 9 Ch. 279. On breach of a covenant of seisin or of right to convey the prima facie measure of damages is the purchase money with interest. Kimball v. Bryant, 25 Minn 496; Ogden v. Ball, 38 Minn. 237, 36 N.W. 344; Burke v. Beveridge, 15 Minn. 160 (205); Tanner v. Livingston, 12 Wend. 83; Huntsman v. Hendricks, 44 Minn. 423, 46 N.W. 910; Akerly v. Vilas, 21 Wis. 88; Walker v. Wilson, 13 Wis. 522; Tone v. Wilson, 81 Ill. 529; Earle v. Kingsbury, 3 Cush. 206; Hubbard v. Norton, 10 Conn. 422; Mitchell v. Stanley, 44 Conn. 312; Harlow v. Thomas, 15 Pick. 66. The only class of cases in which the courts have shown a disposition to confine the vendee to nominal damages under the covenant of seisin are those in which, although acquiring no title, he has gone into and still retained at the time of his suit the actual possession with or...
To continue reading
Request your trial