Herber v. Christopherson
| Decision Date | 08 May 1883 |
| Parties | Anthony Herber v. Halvor Christopherson, impleaded, etc |
| Court | Minnesota Supreme Court |
Appeal by defendant Christopherson from a judgment of the district court for Scott county, Macdonald, J., presiding, in an action brought against appellant and one William Cressey and his wife. The case is stated in the opinion.
Judgment affirmed.
Ueland & Shores, for appellant.
The foreclosure for the first instalment exhausted the lien of the mortgage, and the sale was not annulled and the lien restored by Cressey's redemption, for he, being a mere equitable mortgagee, (Hill v. Edwards, 11 Minn. 5 (22;) Holton v. Meighen, 15 Minn. 50 (69;) Weide v. Gehl, 21 Minn. 449; Archambau v. Green, Id 520; Benton v. Nicoll, 24 Minn. 221,) was not an "assign" of the appellant, but a "creditor having a lien," and as such only entitled to redeem. Watkins v. Hackett, 20 Minn. 92, (106;) Nopson v Horton, Id. 239, (268.) The lien of the mortgage being thus divested, the plaintiff cannot maintain an action to foreclose, and in such action obtain a judgment against the appellant for a deficiency, instead of resorting to his action at law on the mortgage notes, in which action the appellant would be entitled to a jury trial as of right. It is true the appellant does not, in this action, plead any defence affecting his liability on the notes, nor was it necessary. One good defence to this action is enough; and if the present action is unfounded, there is nothing to show that appellant will not be able successfully to defend an action on the notes.
Henry Hinds and Henry Hinds, Jr., for respondent.
The defendant Christopherson, being the owner of certain lands, mortgaged the same to plaintiff, to secure the payment of a debt of $ 1,500, payable in 10 annual instalments. The first instalment becoming due, the plaintiff foreclosed the mortgage by advertisement, and, at the foreclosure sale, on the 21st day of February, 1879, he purchased the mortgaged premises for the sum of $ 321.64. On February 20, 1880, Christopherson executed to defendant Cressey a deed of conveyance of the land, absolute in form, but for the purpose of securing the payment of money then borrowed from Cressey. At the same time, and as part of the same transaction, Cressey executed to Christopherson a contract for the reconveyance of the land, upon payment of the debt. This deed and contract were not recorded until October, 1881. It appears that Cressey redeemed from the mortgage sale made February 21, 1879, but it does not appear on what day he made redemption, excepting that the sheriff's certificate was dated February 20, 1880. Neither is the fact disclosed whether Cressey assumed to redeem by virtue of his deed alone, and as a grantee of the fee, or, in his real character of equitable mortgagee, as a creditor having a lien. No other redemption appears to have been made. In September, 1880, plaintiff procured from Cressey, for a valuable consideration, a warranty deed of conveyance of the land to himself.
Christopherson being still in possession of the property, the plaintiff then commenced this action to foreclose the mortgage given to himself, for unpaid instalments which had matured subsequent to the former foreclosure; seeking, also, the usual judgment for deficiency against his mortgagor, Christopherson. The defence interposed by Christopherson rested only upon the grounds that, by the former foreclosure, the plaintiff's mortgage security was exhausted, and that, if the lien of the mortgage was not thus determined, it was merged in the fee conveyed by the deed from Cressey. Judgment for the sale of the mortgaged premises, and application of the proceeds, and for any deficiency in the debt which might remain, was awarded in the usual form, and from the judgment Christopherson appeals.
It is not questioned here that Cressey's redemption was valid. If he is to be regarded as an "assign" of Christopherson, and to have redeemed as such, the redemption annulled the foreclosure sale, and left still subsisting and effectual the...
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