Carson v. Cochran

CourtSupreme Court of Minnesota (US)
Writing for the CourtMITCHELL
Citation52 Minn. 67,53 N.W. 1130
PartiesCARSON v COCHRAN ET AL., (TWO CASES.)
Decision Date23 December 1892

52 Minn. 67
53 N.W. 1130

CARSON
v
COCHRAN ET AL., (TWO CASES.)

Supreme Court of Minnesota.

Dec. 23, 1892.


[53 N.W. 1130]


(Syllabus by the Court.)

1. In an action to foreclose a mortgage, the mortgagor, and those claiming under him, cannot set up as a defense that he had no title to the mortgaged premises.

2. Held that, if a certain instrument did not create a valid trust, it is valid as a power in trust.

3. If a party voluntarily, and without mistake of fact, pays as interest a greater rate than is legally enforceable, (but not usurious,) the appropriation thus made by the parties will not be disturbed, but will stand as any other voluntary payment; and when it is paid on a debt secured by mortgage, subsequent purchasers of the mortgaged premises, unless they show some special equity peculiar to themselves, have no greater rights in that respect than the mortgagor.

4. A partial payment which prevents the statute of limitations against the debt from running will also prevent the statute from running against the remedy on the mortgage security; and a purchaser from the mortgagor, with actual or constructive notice of the mortgage, will be bound by any previous acknowledgment of the debt by his grantor.


Appeal from district court, Fillmore county; FARMER, Judge.

Action by Matilda G. Carson against Thomas Cochran, Jr., and others, trustees, and the Chicago, Milwaukee & St. Paul Railway Company, to foreclose a mortgage. From a judgment for plaintiff, defendants appeal. Affirmed.

The mortgage was executed by virtue of a declaration of trust, which instrument is referred to in the opinion as “Exhibit A.” In this instrument, executed by them, C. W. Thompson, F. W. Lane, and H. C. Kingsley declared that certain specified real property, including that covered by plaintiff's mortgage, had been conveyed to them, by one Wykoff, as joint tenants; that they had taken the title to the property in their individual names, for convenience, and held the same in trust for the holders of certain certificates of stock to be issued to the persons contributing to a fund used in the purchase of the property, inter alia, to sell and convert the property, to improve the same with the surplus funds contributed, to convey and mortgage the property upon such terms as to the trustees might seem proper, and to turn over all profits to such stockholders. Provision was made for the substitution of trustees. Subsequently to the execution of this instrument, the trustees named executed and delivered to plaintiff the mortgage now sought to be foreclosed. Thereafter the trustees conveyed portions of the property subject to the mortgage. These grantees, or their assigns, were joined as defendants herein. The opinion states the facts. Prior to the commencement of this action, the trust vested in defendants Cochran and O. G. Walls. Upon the trial before the court, without a jury, judgment was ordered for plaintiff, substantially as prayed. Defendants separately appeal from all or a portion of the judgment.

H. R. Wells and B. A. Man, for appellants.

Lloyd W. Bowers, for respondent.


MITCHELL, J.

This was an action to foreclose a mortgage on real estate. The only questions raised by the appeal are whether the conclusions of law were justified by the findings of fact.

1. The first and second assignments of error go to the point that a certain trust (Exhibit A of the complaint) attempted to be created by Thompson, Kingsley, and Lane, and under which they assumed to execute the mortgage in question, is void. To this there are at least three complete answers: First. The only interest which the defendants claim in the property is under this very trust, either as trustees or as the grantees of the trustees; and the ground of their attack on the mortgage is not that it is, in and of itself, invalid, but that the mortgagors had no title or interest in the land to convey. The position of the defendants is suicidal; for, if they are right in their contention, they themselves have no interest either in the property or in the result of this action. The mortgagor, and those claiming under him, are estopped to thus deny his title. The decree of foreclosure binds his interest, whatever it may be, and nothing more, and to such a decree the mortgage is entitled. Second. If Exhibit A...

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25 practice notes
  • Colonial & U.S. Mortg. Co. v. Nw. Thresher Co.
    • United States
    • United States State Supreme Court of North Dakota
    • April 27, 1905
    ...the statute from running against it will also prevent the statute from running against the remedy on the security.” Carson v. Cochran, 52 Minn. 67, 53 N. W. 1130. See, also, Wiltsee on Mortgages, § 65; 2 Jones on Mortgages, §§ 1214b, 1201, 1202; 2 Pingrey on Mortgages, §§ 1570, 1572. I will......
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...95 Cal. 184, 30 Pac. 213, 16 L. R. A. 646;Clift v. Williams, 105 Ky. 559, 49 S. W. 328, 51 S. W. 821;Carson v. Cochran, 51 Minn. 67, 53 N. W. 1130;Duty v. Graham, 12 Tex. 427, 62 Am. Dec. 534;Hurley v. Cox, 9 Neb. 230, 2 N. W. 705;Hill v. Gregory, 64 Ark. 317, 42 S. W. 408;Law v. Spence, 5 ......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1912
    ...Allen v. Allen, 95 Cal. 184 (30 P. 213, 16 L. R. A. 646); Clift v. Williams, 105 Ky. 559 (49 S.W. 328, 51 S.W. 821); Carson v. Cochran, 52 Minn. 67 (53 N.W. 1130); Duty v. Graham, 12 Tex. 427 (62 Am. Dec. 534); Hurley v. Cox, 9 Neb. 230 (2 N.W. 705); Hill v. Gregory, 64 Ark. 317 (42 S.W. 40......
  • Boucofski v. Jacobsen, 1940
    • United States
    • Supreme Court of Utah
    • June 12, 1909
    ...is good as against subsequent purchasers. (Heger v. Pruyn, 7 Paige 465, 34 Am. Dec. 355; Hough v. Bailey, 32 Conn. 288; Carson v. Cochran, 52 Minn. 67, 53 N.W. 1130; 19 Ency. L. [2 Ed.], 315, and authorities cited.) C. S. Patterson for respondents. FRICK, J. STRAUP, C. J., and McCARTY, J., ......
  • Request a trial to view additional results
25 cases
  • Colonial & U.S. Mortg. Co. v. Nw. Thresher Co.
    • United States
    • United States State Supreme Court of North Dakota
    • April 27, 1905
    ...the statute from running against it will also prevent the statute from running against the remedy on the security.” Carson v. Cochran, 52 Minn. 67, 53 N. W. 1130. See, also, Wiltsee on Mortgages, § 65; 2 Jones on Mortgages, §§ 1214b, 1201, 1202; 2 Pingrey on Mortgages, §§ 1570, 1572. I will......
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...95 Cal. 184, 30 Pac. 213, 16 L. R. A. 646;Clift v. Williams, 105 Ky. 559, 49 S. W. 328, 51 S. W. 821;Carson v. Cochran, 51 Minn. 67, 53 N. W. 1130;Duty v. Graham, 12 Tex. 427, 62 Am. Dec. 534;Hurley v. Cox, 9 Neb. 230, 2 N. W. 705;Hill v. Gregory, 64 Ark. 317, 42 S. W. 408;Law v. Spence, 5 ......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1912
    ...Allen v. Allen, 95 Cal. 184 (30 P. 213, 16 L. R. A. 646); Clift v. Williams, 105 Ky. 559 (49 S.W. 328, 51 S.W. 821); Carson v. Cochran, 52 Minn. 67 (53 N.W. 1130); Duty v. Graham, 12 Tex. 427 (62 Am. Dec. 534); Hurley v. Cox, 9 Neb. 230 (2 N.W. 705); Hill v. Gregory, 64 Ark. 317 (42 S.W. 40......
  • Boucofski v. Jacobsen, 1940
    • United States
    • Supreme Court of Utah
    • June 12, 1909
    ...is good as against subsequent purchasers. (Heger v. Pruyn, 7 Paige 465, 34 Am. Dec. 355; Hough v. Bailey, 32 Conn. 288; Carson v. Cochran, 52 Minn. 67, 53 N.W. 1130; 19 Ency. L. [2 Ed.], 315, and authorities cited.) C. S. Patterson for respondents. FRICK, J. STRAUP, C. J., and McCARTY, J., ......
  • Request a trial to view additional results

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