Gille v. Hunt

• Decision Date: 07 July 1886
• Citation: 35 Minn. 357,29 N.W. 2
• Parties: GILLE v HUNT AND OTHERS.
• Court: Minnesota Supreme Court

35 Minn. 357

29 N.W. 2

GILLEvHUNT AND OTHERS.

Supreme Court of Minnesota.

July 7, 1886.

Appeal from a judgment of the Fourth district, Hennepin county.

E. E. Witchie and Seagrave Smith, for respondent, Mary E. Gille.

Gilfillan, Belden & Willard, for appellants, George H. Hunt and others.

GILFILLAN, C. J.

Action under the statute to determine adverse claims to real estate, each party claiming the title. July 25, 1856, Jared S. Demman owned the premises, and on that day executed a mortgage thereon to “D. B. Dorman & Co.,” containing the usual power of sale, and which was, on the same day, duly recorded. October 7, 1856, Demman conveyed the premises to Peter Poncin, by deed duly recorded the next day. On the same day, evidently either at the same time of or after the execution of this last deed, D. B. Dorman executed to Poncin a deed of quitclaim and release of the premises, which was recorded October 8, 1856. Plaintiff claims under Poncin. “D. B. Dorman & Co.” was a partnership under that name, composed of D. B. Dorman and Ovid Pinney, though that fact does not appear to have been stated in the mortgage. April 15, 1857, Dorman executed to Pinney an assignment of the mortgage recorded September 13, 1859. In May, 1864, Pinney proceeded to foreclose the mortgage under the power of sale, signing his name to the notice of sale, “OVID PINNEY, Mortgagee and Assignee.” At the sale he became the purchaser, and received from the sheriff the usual certificate. The defendants claim under the mortgage and foreclosure.

The case turns mainly on the question, in whom was the legal title to the mortgage,-that is, who was in law the mortgagee? Was it D. B. Dorman, or was it the partnership or the parties doing business under the name D. B. Dorman & Co.? A mortgage of real estate, though it is in effect but a lien or security, is in form a conveyance of an estate or interest in land, -Morrison v. Mendenhall, 18 Minn. 232, (Gil. 212,)-and must be governed by the same rules as to its execution and validity, and the capacity of the parties, and their proper designation, as are applied to a conveyance. It has been affirmed in several cases in this court that the legal title to real estate can be held only by a person, or a corporate entity, which is deemed such in law; and that, therefore, a partnership cannot, as such, take and hold such legal title. Thus, in German Land Ass'n v. Scholler, 10 Minn. 331, (Gil. 260,) it was decided that the plaintiff, being only a voluntary association of persons, unincorporated,had no legal capacity to take or hold real property. The rule was recognized in Morrison v. Mendenhall; and in Tidd v. Rines, 26 Minn. 201, S. C.2 N. W. Rep. 137, it was decided that a conveyance to a partnership by its firm name did...