Finnegan v. Gunn
| Citation | 292 N.W. 22,207 Minn. 480 |
| Decision Date | 10 May 1940 |
| Docket Number | 32346. |
| Parties | FINNEGAN v. GUNN et al. |
| Court | Supreme Court of Minnesota (US) |
Appeal from District Court, Itasca County; D. H. Fullerton, Judge.
Proceeding in the matter of the application of Galen L. Finnegan for issuance to him of a certificate of title to certain realty opposed by Annie E. Gunn and others. From an order denying her motion for a new trial, Margaret C. Finnegan appeals.
Order affirmed.
An instrument in the form of a mortgage in which the realty owner's wife did not join, could be registered after his death. Mason's Minn.St.1927, §§ 8196, 8293, 8301.
Syllabus by the Court .
In an action to register a certain deed, appellant and respondent framed issues on cross petitions. Held :
1. Although an instrument in the form of a mortgage does not create a lien until registered, it does give rise to certain equitable duties.
2. A devise who acquired property by will at a time when no mortgage was registered and who did not have notice of the instrument executed by the devisor acquired a title subject to having the instrument registered as a paramount lien on order of the district court.
3. An instrument in the form of a mortgage in which the owner's spouse does not join can be registered under the facts stated in the opinion when ordered by the district court.
Jenswold & Dahle, of Duluth, for appellant.
Willard A. Rossman, of Grand Rapids, and Ralph A. Stone, of St. Paul, for respondent.
This is an appeal from an order of the district court for Itasca county denying the motion of Margaret C. Finnegan for a new trial.
The issues were framed on cross petitions in an action to register a certain deed. The background of the litigation is this. Prior to December 31, 1930, Bernard C. Finnegan was the owner of an undivided interest in certain realty. On February 5, 1932, Finnegan, without joinder of his wife, Margaret C Finnegan (hereafter called appellant), executed an instrument in the form of a mortgage in favor of Daniel M. Gunn. Gunn died and his widow, the respondent Annie E. Gunn (hereafter called respondent), acquired the rights of her husband. The final decree in the probate of Gunn's estate was made May 9, 1933. On December 17, 1934, Bernard C. Finnegan died and devised his entire estate to his wife, the appellant.
The instrument was never presented for registration as a mortgage and appellant did not have notice of its existence prior to her husband's death.
The trial court ordered that the instrument should be registered as a valid lien against the undivided two-thirds of the one-sixth interest owned by Bernard C. Finnegan at his death but it was not to be registered as a lien upon the undivided one-third of the undivided one-sixth. Dissatisfaction resulted in this appeal.
2 Mason Minn.St.1927, § 8293, provides,
Section 8300 provides that the owner may mortgage the land but the instrument ‘ shall be registered, and shall take effect upon the title only from the time of registration.'
Appellant argues that the title passed by the will under § 8293 at the time of her husband's death without reference to registration. Consequently, her position is that she acquired the title at a time when there was no mortgage registered and when she did not have notice of respondent's claim. To appellant, the question whether a mortgage in which the spouse does not join can be registered is not involved.
Respondent argues that the mortgage can be registered and that appellant, a devisee, does not take the title paramount to the rights of the respondent.
Certain premises are not open to dispute and can be disposed of summarily. Manifestly, the instrument executed by Finnegan could not create a lien until it was registered. It is the act of registration which operates to convey and effect the title except in the case of a will or a lease for a term not exceeding three years. 2 Mason Minn.St.1927, § 8293. Appellant became vested with the title to the property upon which the lower court ordered the mortgage to be registered as a lien by the operative effect of her husband's will.
Finnegan, while alive, held the title unfettered in the registry by the purported mortgage. The instrument could not operate until registered (assuming it could be) and up to that time was no more than a contract and authority, at least so far as Finnegan was concerned, to the registrar to register it as a mortgage. Until properly registered there was no lien although the money which...
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