Buettel v. Harmount

• Decision Date: 03 July 1891
• Citation: 46 Minn. 481
• Parties: JOHN I. BUETTEL <I>vs.</I> GEORGE A. HARMOUNT, impleaded, etc.
• Court: Minnesota Supreme Court

46 Minn. 481

JOHN I. BUETTEL vs. GEORGE A. HARMOUNT, impleaded, etc.

Supreme Court of Minnesota.

July 3, 1891.

Appeal by defendant Harmount (impleaded with Paul Sharvey, sheriff) from an order of the district court for St. Louis county, Stearns, J., presiding, granting a temporary injunction to restrain foreclosure by advertisement of the mortgage from Franklin R. Anson to defendant Harmount, which is considered in the opinion.

White, Reynolds & Schmidt, for appellant.

Cash & Williams and John Jenswold, Jr., for respondent.

VANDERBURGH, J.

It appears from the complaint that plaintiff and one Anson were grantees of the land described therein, subject to a mortgage for $2,000, and interest, which had been executed by their grantor, Benjamin F. Smith, to one Davis. Thereafter, on the 19th day of June, 1889, Anson mortgaged his undivided half-interest in the premises to the defendant, Harmount, subject to the first-mentioned mortgage. Subsequently the first mortgage was foreclosed by the assignee thereof, and the mortgaged premises bid off and purchased by him on the 31st day of December, 1889. It is further shown that Anson took no steps to redeem the premises, and that the plaintiff, as owner of an undivided half thereof, was compelled to, and did, redeem the whole thereof on the 30th day of December, 1890, and received a certificate of redemption, which was duly recorded. The defendant Harmount, the second mortgagee, has never redeemed or offered to redeem any interest in the premises from the plaintiff, and is about foreclosing his mortgage upon the premises described therein, (being Anson's moiety,) and has advertised the same for sale thereunder. The answer of Harmount admits that no redemption has been made by him, and admits that the undivided half of the premises covered by his mortgage is subject to the payment of one-half of the amount paid by plaintiff for the redemption of the premises. Plaintiff therefore asked for and obtained an injunction restraining the foreclosure sale under defendant's mortgage, on the ground that plaintiff's title had become absolute, and discharged from the lien of defendant's mortgage, by virtue of his redemption, and that defendant's foreclosure would cloud his title. He claims the title to Anson's undivided interest was lost, because neither he nor his assigns redeemed within the year; that his redemption annulled the sale as respects his half only; but that he acquired the same title to Anson's half that...