Hostetter v. Alexander

• Decision Date: 28 April 1876
• Citation: 22 Minn. 559
• Parties: LUCINDA HOSTETTER <I>vs.</I> JOSEPH ALEXANDER.
• Court: Minnesota Supreme Court

22 Minn. 559

LUCINDA HOSTETTERvs.

JOSEPH ALEXANDER.

Supreme Court of Minnesota.

April 28, 1876.

Action to reform and foreclose a mortgage on real estate, made by defendant to one Irish, to secure the purchase money upon a sale and conveyance of the same real estate by Irish to him, and by Irish assigned, together with the mortgage notes, (which were payable to bearer,) to the plaintiff. Defence, want of title in Irish to the premises conveyed, and consequent failure of the consideration of the notes and mortgage, and a partial payment before the assignment to plaintiff. Trial in the district court for Dodge county, before Lord, J., who found (among other things) that plaintiff purchased the notes and mortgage before maturity, for a valuable consideration, with knowledge of the consideration for which they were made, but without any knowledge or information of any defect in the title to the premises, or any failure of the consideration; and that, therefore, it was unnecessary to determine whether there had been, or was in fact, any failure of the title conveyed by Irish to the defendant. The court further found the payments alleged in the answer, and the amount due on the mortgage and notes, and ordered judgment for plaintiff, which was entered, and defendant appealed. The appeal was taken more than six months after the decision and order for judgment, but within six months after entry of judgment.

Chas. C. Willson, for appellant.

S. L. Pierce, for respondent.

BERRY, J.

This appeal was taken within six months "after the entry" of the judgment appealed from. It was, therefore, in time. Laws 1869, ch. 70; Humphrey v. Havens, 9 Minn. 318.

The principal question presented by this case was examined and considered in Johnson v. Carpenter, 7 Minn. 176. It was there determined that "where a debt is secured by a mortgage, and also by a negotiable promissory note, the mortgage is a chose in action as between the mortgagor and any subsequent assignee, and is taken subject to the state of accounts between the mortgagor and mortgagee at the time of the assignment;" and, in effect, that the privileged character of the note as negotiable paper does not extend to the mortgage by which it is secured, but that the mortgage is exposed to the same defences in the hands of an assignee as in the hands of the mortgagee. If this was not the only ground upon which the decision in Johnson v. Carpenter was based, it is evident that it was the ground which received most...