Falconer v. Cochran

• Decision Date: 27 May 1897
• Docket Number: 10,597--(147)
• Citation: 71 N.W. 386,68 Minn. 405
• Parties: JAMES H. FALCONER v. THOMAS COCHRAN and Others
• Court: Minnesota Supreme Court

71 N.W. 386

68 Minn. 405

JAMES H. FALCONER v. THOMAS COCHRAN and Others

Nos. 10,597--(147)

Supreme Court of Minnesota

May 27, 1897

Appeal by defendant Allan Black from a judgment for plaintiff entered in the district court for Ramsey county, after a trial before Otis, J. Affirmed.

Order affirmed.

James H. Barnard, for appellant.

Where in an action to foreclose a mechanic's lien, a mortgagee appears by attorney without authority, and where in such action a court of competent jurisdiction finds, after a trial on the merits, that such mechanic's lien claim is in fact prior to such mortgagee's interest, a court of equity will not reform such mortgage in a subsequent action by the mortgagee for that purpose, so as to defeat such mechanic's lien claim. Up to the time of the commencement of the action by respondent to reform and foreclose his mortgage, respondent had no valid interest in the premises for the reason that an estate in real property must vest in a person. Morrison v. Mendenhall, 18 Minn. 212 (232); Gille v. Hunt, 35 Minn. 357. So that when the action to foreclose the mechanic's lien was commenced, the respondent having no valid interest in the premises, was not a necessary party, and by his own showing was not made a party. Through the fraud of respondent's attorney the trial court, as well as appellant, was led to believe that a bona fide appearance had been made by respondent in the mechanic's lien foreclosure suit, and relying on that appearance, the case was tried on its merits. In view of these facts the equity of appellant is at least equal to that of respondent, and equity demands that the claim of appellant should prevail. White v. Denman, 16 Ohio 59. The universal rule is to give a mortgagee, not a party to a lien foreclosure suit, the right of redemption. Whitney v Higgins, 10 Cal. 547; Gamble v. Voll, 15 Cal 507; Evans v. Tripp, 35 Iowa 371; Jones v. Hartsock 42 Iowa 147.

Bigelow & Taylor, for respondent.

That a mechanic's lien claimant must commence his action against all persons who have any interest in the property within the period provided by statute in order to preserve his lien as to such persons, is settled law in this state. Smith v. Hurd, 50 Minn. 503. Any deed or contract by which it is intended to impose a lien upon real or personal property as security for a debt or obligation, but which is wanting in one or more of the legal characteristics of a common law mortgage, will be enforced in equity as an equitable mortgage and no reformation is necessaray. 1 Jones, Mort. §§ 162, 168; Ketchum v. St. Louis, 101 U.S. 306; Payne v. Wilson, 74 N.Y. 348; 2 Story, Eq. Jur. § 1231; McQuie v. Peay, 58 Mo. 56; Miller v. Rutland, 36 Vt. 452; McClurg v. Phillips 49 Mo. 315; Daggett v. Rankin, 31 Cal. 327; Love v. Sierra, 32 Cal. 639; Abbott v. Godfroy, 1 Mich. 179; Gale v. Morris, 29 N.J.Eq. 222.

OPINION

MITCHELL, J.

Action to foreclose a mortgage, commenced in July, 1896. There being neither a "case" nor bill of exceptions, the only question presented by the record is whether the conclusions of law and order for judgment are supported by the findings of fact.

The material facts found are, briefly, as follows: The plaintiff is the sole executor of the estate of Martha Falconer, of New York, deceased. On June 19, 1893, the defendant Silas B Walsh executed to the plaintiff, by the name or title "Estate of Mary Falconer," the mortgage sought to be foreclosed. In May, 1894, the defendant Black brought an action to enforce a mechanic's lien for material and labor alleged to have been furnished by him in repairing a building on the premises described in plaintiff's mortgage. In that action the mortgagor, Walsh, was made a defendant, and the present plaintiff was also named as a defendant, but the summons was never served on him, and he never appeared in the action, but an attorney, without any authority, entered an appearance for him, and a judgment was entered in October, 1894, adjudging that there was due Black on said lien $ 388, and that the same was a specific lien upon the premises from and after June 10, 1893, and superior to the lien of plaintiff's mortgage, and ordering that the premises be sold to satisfy the judgment. The premises were sold on that judgment in December, 1894, and bid in by the defendant Black, the sale confirmed by the court, and from that sale there had been no redemption. In May, 1896, upon the special appearance and motion of the plaintiff,...