Hall v. McCormick
| Citation | 17 N.W. 620,31 Minn. 280 |
| Parties | Isabella A. Hall v. C. H. McCormick and another, impleaded, etc |
| Decision Date | 05 December 1883 |
| Court | Minnesota Supreme Court |
The plaintiff brought this action in the district court for Fillmore county to foreclose a mortgage securing several notes given for a part of the purchase-money of land formerly owned by plaintiff. The defendants C. H. and L. J. McCormick the owners and holders of the note first maturing under the mortgage, answered and asked to have their note first paid out of the proceeds of the foreclosure sale. After a trial before Farmer, J., judgment was ordered and entered, as stated in the opinion, directing a sale of the mortgaged property, and the application of the proceeds, first, to the payment of the note held by the McCormicks, and then to the payment of the other notes secured by the mortgage and which are held by plaintiff. Plaintiff appeals from so much of the judgment as gives priority of lien and payment to the notes held by the McCormicks.
The case will be remanded, with directions to modify the judgment in conformity with these views.
N. P Colburn, for appellant.
H. R Wells, for respondents.
The defendants McCormick move to dismiss the appeal in this case substantially on two grounds: First, that the plaintiff consented to the judgment as rendered; and second, that the appeal is taken from a part of the judgment which is connected with and dependent upon another portion thereof, the benefit of which plaintiff accepts. As to the first proposition, the court found, as a conclusion of law, that the note transferred to and held by the defendants McCormick, upon which judgment had been recovered by them against the maker, and which matured prior to the notes held by the plaintiff, was entitled to be first satisfied from the sale of the land included in the mortgage which was given to secure them all. And thereupon the court, "by consent of the parties, and in their mutual interest, and as per stipulation," ordered that a decree be entered in plaintiff's favor, subject to the lien of the defendants' judgment. Annexed to the order is the following stipulation, signed by the attorneys of the parties, which was referred to in the order as above "Plaintiff and defendants McCormick consent and agree to the entry of judgment as above indicated." We do not think this stipulation controlled or related to the decision of the merits of the...
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