Kiewel Securities Co. v. Knutson

• Decision Date: 10 December 1926
• Docket Number: No. 25519.,No. 25691.,25519.,25691.
• Parties: KIEWEL SECURITIES CO. v. KNUTSON et al.
• Court: Minnesota Supreme Court

211 N.W. 1

169 Minn. 291

KIEWEL SECURITIES CO. v. KNUTSON et al.

No. 25519.

No. 25691.

Supreme Court of Minnesota.

December 10, 1926.

Appeal from District Court, Morrison County; John A. Roeser, Judge.

Action by the Kiewel Securities Company against Charles Knutson and others to foreclose a mortgage. From a decree of foreclosure and a deficiency judgment, Jens Johnson appeals. Decree modified, and personal deficiency judgment entered against appellant vacated. Appeal from an order refusing to modify the decree and vacate the deficiency judgment dismissed.

Walter P. Wolfe, of Minneapolis, for appellant.

Frederick J. Miller, of Little Falls, for respondent.

HOLT, J.

The appeal is from a decree and deficiency judgment rendered in a mortgage foreclosure action.

The complaint alleged that defendants Knutson executed their promissory note on July 25, 1920, for value, promising to pay to the order of plaintiff $8,800 on or before June 28, 1929, with interest at 6 per cent. payable annually. To secure payment thereof Knutsons executed a mortgage on 240 acres of land in Morrison county, Minn., wherein they also agreed to pay taxes. Then it was alleged that default had been made in the payment of the annual interest and taxes, "and the plaintiff elects to declare the whole amount secured by said mortgage due and payable, and there is now due on said note and mortgage from defendants Charles Knutson and Isabelle Knutson, his wife, the sum of $10,778." The further averment is that the Knutsons sold and conveyed the land mortgaged to appellant, who "assumed and agreed to pay said note and mortgage" as part of the purchase price of the premises. The prayer was to have the amount due from appellant on said note and mortgage adjudged, a sale of the premises directed, the proceeds to be applied on the amount adjudged due, expenses, and costs, barring defendants of the equity of redemption, except as provided by statute, and "for such other relief as may be just." There was personal service on appellant, but he defaulted. Findings of fact were made wherein the promissory note of Knutsons was set out in hæc verba, the execution and recording of the mortgage, the assumption of payment of the note and mortgage by appellant, the default in the payment of interest and taxes, all as alleged in the complaint, and, as conclusion of law, that plaintiff was entitled to judgment against Knutsons and appellant for $10,823.46, together with $352.59 taxes paid by plaintiff, with interest and costs and disbursement, including $75 attorney's fees; that the premises be sold to satisfy plaintiff's claim, reporting thereon to the court, and, if not sufficient, that plaintiff have judgment for the deficiency against Knutsons and appellant. A decree was entered accordingly on September 14, 1925, and on the coming in of the report of sale, on October 30, 1925, a deficiency judgment was entered against Knutsons and appellant for $2,608.06. The appeal is from the decree as well as from the deficiency judgment.

Before the appeal from the decree was taken appellant gave notice of a motion to amend the same so as to eliminate the right to a deficiency judgment. The hearing was for various reasons postponed, and a decision was not rendered until some time after the appeal from the decree was taken. Respondent now asks for a dismissal on the ground that the...