Conway v. Elgin

• Decision Date: 05 June 1888
• Citation: 38 Minn. 469
• Parties: SADIE CONWAY <I>vs.</I> M. D. ELGIN, impleaded, etc.
• Court: Minnesota Supreme Court

Page 469

38 Minn. 469

SADIE CONWAY vs. M. D. ELGIN, impleaded, etc.

Supreme Court of Minnesota.

June 5, 1888.

Plaintiff brought this action in the district court for Crow Wing county, for the cancellation of a mortgage on her husband's homestead, which, as she alleges, when signed by her (in Crow Wing county), was wholly blank as to the names of the grantees, the consideration, the description of the property, and the terms of payment of any sums, and was not sealed or acknowledged by her. She further alleges in the complaint that she never authorized her husband or any person to fill any blanks in the instrument, unless her husband should carry out what he told her when obtaining her signature to the blank instrument was his intention, of calling a meeting of his creditors in Minneapolis, and effecting a settlement; but that having entrusted the instrument to her husband on this condition, it was afterwards, without performance of the condition, filled out at Minneapolis, by some person unknown to her, with the name of defendant Elgin, as mortgagee, and her husband was induced to sign it, and some person unknown affixed a seal to her signature, and the signatures of witnesses and a certificate of acknowledgment by herself and husband (false as to her) were added, and the instrument was then delivered to defendant Elgin, to whom neither she nor her husband was in anywise indebted. The substance of the answer is stated in the opinion. On July 23, 1886, an order for judgment for plaintiff on the pleadings was made, from which the defendant appealed to this court, where the order was reversed for plaintiff's failure to serve a brief or appear at the argument of the appeal. The cause having been remitted to the district court, the defendant Elgin moved for judgment on the pleadings, which was denied, and the cause was tried by Sleeper, J., who found the allegations of the complaint to be true, and ordered judgment for plaintiff cancelling the mortgage. The defendant Elgin appeals from an order refusing a new trial.

Corrigan & Bradish, for appellant.

Fred. B. Dodge, for respondent.

COLLINS, J.

But two points need be considered on this appeal.

1. The fact that the order directing judgment for plaintiff upon the pleadings (complaint and answer) herein was reversed by this court does not, of itself, entitle defendant to judgment upon the same pleadings. The only question presented upon the appeal, and consequently the single one decided, was that defe...