Fidelity Philadelphia Trust Co. v. Brown

• Citation: 181 Minn. 466,233 N.W. 10
• Decision Date: 14 November 1930
• Docket Number: No. 28099.,28099.
• Parties: FIDELITY PHILADELPHIA TRUST CO. v. BROWN et al.
• Court: Minnesota Supreme Court

233 N.W. 10

181 Minn. 466

FIDELITY PHILADELPHIA TRUST CO. v. BROWN et al.

No. 28099.

Supreme Court of Minnesota.

November 14, 1930.

Appeal from District Court, Hennepin County; Mathias Baldwin, Judge.

Action by the Fidelity Philadelphia Trust Company against Harold P. Brown, H. J. West, Helen E. Wood and others. From the amended judgment of foreclosure of a mortgage, defendants West and Wood appeal.

Appeals dismissed.

Harris Richardson, of St. Paul, for appellants.

Kingman, Cross, Morley & Cant, of Minneapolis, for respondent.

HOLT, J.

Defendants H. J. West and Helen E. Wood appeal from the amended judgment of foreclosure of a $750,000 mortgage upon the premises known as the West Hotel in Minneapolis, Minn.

Appeals in this foreclosure proceeding have been disposed of in 178 Minn. 150, 226 N. W. 406; 230 N. W. 780; and 232 N. W. 740, filed October 24, 1930. Plaintiff's mortgage, in the form of a trust deed, to secure payment of 750 $1,000 bonds, is a first lien upon the premises known as the West Hotel in Minneapolis, fronting 170 feet on Hennepin avenue and 220 feet on Fifth street. It was owned by defendant Helen E. Wood until conveyed, about May 1, 1927, to defendant Harold P. Brown, who, his wife joining, executed the mortgage or trust deed to plaintiff. Thereafter, on May 17, 1927, the Browns conveyed the premises to West Hotel, Incorporated, and that corporation, about the same date, executed a mortgage to defendant Helen E. Wood to secure the payment of $120,000. The last mortgage was made subject to plaintiff's mortgage. These mortgages and conveyances were properly recorded, and it is conceded that plaintiff's mortgage became a first lien and defendant Wood's mortgage a second lien upon the premises known as the West Hotel. There was a default in defendant Wood's mortgage, and she foreclosed, by advertisement, the sheriff's certificate of sale to her bearing date August 6, 1928. After the West Hotel, Incorporated, gave the mortgage to Helen E. Wood, it became a bankrupt, and the trustee in the bankruptcy proceeding, in disposing of the assets of the bankrupt, conveyed the West Hotel property to defendant H. J. West on October 23, 1928. This action was begun in the first part of October, 1928. All parties interested in the property were made parties, and duly served with summons. All defaulted except Helen E. Wood and H. J. West, who was brought in as a party defendant after he purchased from the trustee in bankruptcy. Such proceedings were thereafter had that a judgment of foreclosure was rendered on May 6, 1929, wherein $836,370.28 was declared to be the amount due plaintiff, and the premises were directed to be sold as provided by statute. In October, 1929, appellants noticed a motion to amend the findings so as to eliminate certain taxes included in the amount found due in the judgment, and plaintiff consented that they be eliminated. The court made findings accordingly, and on November 5, 1929, this decree was entered from which this appeal is taken: "The above entitled matter came on for hearing before the above named court on the 2nd day of November, 1929, on motion of defendants H. J. West and Pearl A. West, his wife, and Helen E. Wood to vacate the judgment and decree herein and amend the findings of fact, conclusions of law and order for judgment in certain particulars set forth in their notice of motion and the court, after considering the written consent of the plaintiff filed herein and being fully advised in the premises, did on the 5th day of November, 1929, duly make and file its order amending the findings of fact, conclusions of law and order for judgment and judgment and decree herein.

"Now pursuant to said order, it is hereby adjudged and decreed that the judgment and decree herein entered on May 6, 1929, is amended by striking out in the first paragraph thereof the words and figures, `Eight Hundred Twenty-seven thousand nine hundred fifty-two and 76/100 dollars ($827,952.76), together with interest thereon at the rate of six per cent. (6%) per annum from the said 5th day of March, 1929, to the 6th day of May, 1929, amounting to eight thousand four hundred seventeen and 52/100 dollars ($8,417.52), amounting in all to the sum of eight hundred thirty-six thousand three hundred seventy and 28/100 dollars ($836,370.28),' and inserting in lieu thereof the following words and figures, `Eight hundred ten thousand two hundred seventy-three and 89/100 dollars ($810,273.89), together with interest thereon at the rate of six per cent. (6%) per annum from the said 5th day of March, 1929, to the 6th day of May, 1929, amounting to eight thousand one hundred two and 73/100 dollars ($8,102.73), amounting in all to the sum of eight hundred eighteen thousand three hundred seventy-six and 62/100 dollars ($818,376.62).'

"It is further adjudged and decreed that the second paragraph of the judgment and decree herein is amended by striking out the words and figures, `and said eight hundred thirty-six thousand three hundred seventy and 28/100 dollars ($836,370.28),' and inserting in lieu thereof the words and figures, `and said...