M'Arthur v. Martin

• Decision Date: 27 June 1876
• Citation: 23 Minn. 74
• Parties: DANIEL McARTHUR <I>vs.</I> JOHN MARTIN and others.
• Court: Minnesota Supreme Court

23 Minn. 74

DANIEL McARTHURvs.

JOHN MARTIN and others.

Supreme Court of Minnesota.

June 27, 1876.

Appeal by defendants from a judgment of the district court for Olmsted county, where the action was tried before Mitchell, J., without a jury.

Chas. C. Willson, for appellants.

Lloyd Barber, for respondent.

BERRY, J.

The important facts found by the court below in this case are these:

In December, 1866, the defendant John Martin, being owner of the north-east quarter of section 17, town 108, range 13, conveyed the west half thereof to the plaintiff by warranty deed. In September, 1868, Martin purchased of Quinlan the south half of the north-west quarter of said section 17, subject to a mortgage to Aiken. In October, 1868, Martin and the plaintiff borrowed of Tew $1,975, to secure which they gave their joint note, and a joint mortgage of the above-described three eighty-acre tracts, with covenants of warranty. Of the sum borrowed plaintiff received $440, and Martin the balance, and, as between them, it was agreed that the plaintiff should pay, of the $1,975, only $440 and interest, and that Martin should pay the remainder. In 1869 Martin, for a valuable consideration moving from plaintiff, agreed to assume and pay the whole of the Tew mortgage. Upon Martin's failure to pay, Tew, at foreclosure sale, sold the three eighties, as one tract, to R. W. Chadbourn, for $2,169.77, which was the amount due on the mortgage, with costs of sale.

In March, 1873, John Martin conveyed the east half of the north-east quarter of section 17 aforesaid to Thomas Martin, for $1,125. Of this sum $625 was applied in part-payment of the Tew and Aiken mortgages. The tract thus conveyed was the homestead of John Martin and his family, and by them occupied as such from 1865 until the sale to Thomas Martin.

On February 1, 1869, Aiken, upon foreclosure, sold the premises mortgaged to him, to Dowd, for $985.50, being the amount of the mortgage debt and costs.

On January 11, 1870, John Martin and C. H. Chadbourn entered into an agreement, under which Chadbourn advanced the money to pay off Dowd, taking from him a quitclaim deed of the mortgaged premises and an assignment to himself of the certificate of sale "absolute in form, but with a verbal understanding and agreement with John Martin that it was to stand simply as security for the money thus advanced, and that he would convey to John Martin," upon repayment of the amount advanced and interest. Martin and Chadbourn disagreeing, the former brought an action against the latter for the purpose of settling their respective rights under the agreement of January 11th. The result was that, on December 16, 1874, final judgment was entered up, adjudging, among other things, that there was due to Chadbourn from Martin, for balance of money advanced to pay Dowd, the sum of $400; that Chadbourn held the legal title to the Dowd land simply as security for that sum; that John Martin was the equitable owner thereof, subject to Chadbourn's said claim; and, also, further adjudging that, upon Martin's paying Chadbourn, on or before June 1, 1875, $400, with 12 per cent. interest from December 16, 1874, Chadbourn should convey said land to Martin; but that, if Martin failed to make the payment on or before the time aforesaid, he should be forever barred of all estate or equity in said land.

While the litigation between John Martin and C. H. Chadbourn was pending, John Martin being insolvent and unable to redeem, the plaintiff, for the purpose of saving his eighty, and Thomas Martin, for the purpose of saving his eighty, on May 6, 1874, united in redeeming from R. W. Chadbourn (the purchaser at the foreclosure sale upon the Tew mortgage) the three eighty-acre tracts before described. For that purpose they paid R. W. Chadbourn $2,360, of which Thomas Martin furnished $780 and the plaintiff the balance, to wit $1,580, and took a certificate of redemption of the three eighties running to themselves.

The defendants in this action, other than John Martin and C. H. Chadbourn, are judgment creditors of John Martin, whose judgments were docketed at different dates between December 18, 1869, and October 18, 1871. Upon these judgments executions were, on December 11, 1874, issued and levied upon the estate of John Martin in the Dowd land, viz., the south half of the north-west quarter of section 17 aforesaid.

On December 19, 1874, plaintiff commenced this action, asking, among other things, to be subrogated in place of R. W. Chadbourn as to the south half of the north-west quarter aforesaid, (the Quinlan eighty,) in order that he might reimburse himself for the advance of $1,580, which he was compelled to make for John Martin in order to save his own land from the sale upon the Tew mortgage.

The court further finds that John Martin is wholly insolvent, and has no property liable to execution, unless it be his interest in the south half of the north-west quarter aforesaid, and that each of the three eighties before mentioned is worth $2,000.

As conclusions of law, the court finds that plaintiff is entitled to be subrogated to the rights of the purchaser at the foreclosure sale, upon the Tew mortgage, to the extent of $1,556.65, and interest thereon at 7 per cent. from May 6, 1874; to have such amount adjudged a lien upon the Quinlan eighty as of October 29, 1868, subject to the lien of C. H. Chadbourn; to be adjudged...