Langan v. Iverson

• Decision Date: 11 December 1899
• Docket Number: Nos. 11,880 - (63).,s. 11,880 - (63).
• Citation: 78 Minn. 299
• Parties: PETER LANGAN and Another v. SAMUEL J. IVERSON.
• Court: Minnesota Supreme Court

78 Minn. 299

PETER LANGAN and Another v. SAMUEL J. IVERSON.

Nos. 11,880 - (63).

Supreme Court of Minnesota.

December 11, 1899.

Action in the district court for Ramsey county to recover a deficiency

judgment for $237.30 on a mortgage alleged to have been assumed by defendant. The case was tried before Harrison, acting judge, and a jury, which rendered a judgment in favor of plaintiffs for the amount demanded; and from an order granting a motion for a new trial, plaintiffs appealed. Affirmed.

A. E. Bowe, for appellants.

Childs, Edgerton & Wickwire, for respondent.

BROWN, J.

In March, 1894, the plaintiffs were the owners of certain real property situated in Ramsey county which they had theretofore mortgaged for the sum of $500. On that day they sold and conveyed it to defendant, upon his promise and agreement, as plaintiffs allege, to assume and pay the mortgage debt, as a part of the purchase price. The deed of conveyance was executed and delivered by plaintiffs at the time the contract of sale was made, is in the usual form of such instruments, and recites that the sale is "subject to a certain mortgage of $500." The mortgage debt was due August 20, 1895, — more than a year after the contract was made. Subsequently the mortgage was foreclosed, and the property bid in at the sale by the mortgagee for about one-half the mortgage debt. The mortgagee afterwards brought suit against plaintiffs, and recovered judgment for the deficiency. On the claim that defendant assumed and agreed to pay such mortgage debt, as a part of the purchase price of the property, plaintiffs brought this action against him to recover the amount of the deficiency judgment. The defendant answered, denying the alleged agreement to pay the mortgage debt. At the trial in the court below the plaintiffs had a verdict, and from an order granting a new trial they appeal.

The motion for a new trial was based on three grounds, namely: (1) That the verdict was not justified by the evidence; (2) that the verdict was contrary to law; (3) for errors of law occurring at the trial, and excepted to by defendant. It does not appear from the order of the court upon which of these grounds the new trial was granted. No memorandum is attached to the order, and we are not otherwise informed. One of the grounds of motion being that the verdict was not justified by the evidence, and the evidence as to defendant's promise and agreement to pay the mortgage debt being conflicting, and not "manifestly and palpably" in favor of the verdict, the order granting a new trial must be affirmed, on the rule of Hicks v. Stone, 13 Minn. 398 (434). It is the duty of the appellant, in appeals of this kind, to show that the order appealed from is erroneous and not proper on any of the grounds set forth in the notice of motion for a new trial. If the order be justified or proper to be made on any of the grounds specified in the notice of motion, it must be sustained, though not justified as to the other grounds assigned.

This disposes of the appeal, but, in view of another trial of the action, we deem it proper and advisable to determine the other questions presented. By doing so, another appeal may be avoided.

1. It is contended by the defendant that, conceding the agreement to pay the mortgage debt to have been made, it is void, within...