Lahiff v. Hennepin County Catholic Building & Loan Association
| Decision Date | 29 May 1895 |
| Docket Number | 9309--(141) |
| Citation | 63 N.W. 493,61 Minn. 226 |
| Parties | JAMES W. LAHIFF and Wife v. HENNEPIN COUNTY CATHOLIC BUILDING & LOAN ASSOCIATION |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Hennepin county, Smith, J., sustaining a demurrer to the answer. Reversed.
The order sustaining the demurrer is therefore reversed.
McHale & Abell, for appellant.
Louis Tressman, for respondents.
This is an action brought by a borrowing member of a mutual building and loan association for the reformation of a bond and mortgage dated June 28, 1884, given by the plaintiffs to secure the payment of interest thereon and dues upon five shares of stock owned by one of the plaintiffs.
The plaintiffs and defendant agreed at the time of the execution of the bond and mortgage that the same should be executed to secure a loan of $ 460 and interest thereon at the rate of 6 per cent. per annum, and for the payment of dues on the five shares of stock. By mistake and inadvertence the defendant inserted in the bond and mortgage a condition by the terms of which plaintiffs agreed to pay defendant the sum of $ 1,000 in monthly installments of $ 5.25, with interest at the rate of 6 per cent. per annum on the full $ 1,000.
This is substantially admitted by the answer, and that plaintiffs are entitled to a reformation of the bond and mortgage in this respect, so that they shall be conditional for the payment of interest on $ 460, and not on $ 1,000. But the defendant alleges that default has been made in the conditions of the bond and mortgage providing for the payment of certain portions of the principal, and interest and fines as provided by the constitution and by-laws of the association, and that there is unpaid upon all of said indebtedness the sum of $ 325.65, with interest thereon from June 22, 1892, and alleges that it elects to foreclose said mortgage for the amount due and attorney's fees. The defendant further alleges in its answer, as a second counterclaim and defense, that the plaintiff James W. Lahiff subsequently to the execution of the above-described mortgage, procured from the defendant another loan, and that to secure the payment of the same on May 30, 1885, he and his wife, Nellie Lahiff, executed another bond and mortgage on the same premises as those described in the first mortgage for the sum of $ 200, to secure the payment of $ 120, but demand that this bond and mortgage be reformed so as to be conditioned for the payment of interest on the sum of $ 120 instead of $ 200. There was also default in the payment of the amount due on this mortgage.
The relief prayed for by the defendant is that judgment be entered under the direction of the court adjudging the amount due on said bonds and mortgages, with costs and disbursements of this action, and the sum of $ 50 as attorney's fees as provided in the mortgages, and the sale of the mortgaged premises to satisfy said amount,...
To continue reading
Request your trial