Marston v. Williams

• Decision Date: 22 December 1890
• Citation: 47 N.W. 644,45 Minn. 116
• Parties: MARSTON v WILLIAMS ET AL.
• Court: Minnesota Supreme Court

45 Minn. 116

47 N.W. 644

MARSTONvWILLIAMS ET AL.

Supreme Court of Minnesota.

Dec. 22, 1890.

(Syllabus by the Court.)

1. Where a mortgagee of real property takes and properly records an absolute conveyance to himself from the mortgagor, instead of a mortgage in common form, his rights are fully protected, without the recording of an instrument of defeasance, which he may have executed and delivered to the mortgagor.

2. Judgments properly docketed against such a mortgagor are liens upon his equity of redemption in the premises, and an action to have them so declared may be maintained against a subsequent purchaser having knowledge of the facts, and holding the land under a deed direct from the mortgagee.

Appeal from district court, Blue Earth county; SEVERANCE, Judge.

Lorin Cray, for appellant.

Thos. Hughes, for respondents.

COLLINS, J.

On November 5, 1880, defendant Williams, then in actual possession of 200 acres of land under a contract for its purchase made with a railway corporation, and being unable to pay for the same, borrowed of defendant Thomas O. Jones the sum of $1,500 for the purpose of making full payment and securing a deed of the land. On that day, using the $1,500 and $100 of his own money, he paid for the land, and thereupon, by deed dated October 29, 1880, the railway corporation duly conveyed the same to Williams. On the day first named, Williams and his wife, for the purpose of securing the payment of the borrowed money, executed and delivered to defendant Thomas O. Jones a deed of warranty of 199 acres of the land so purchased from the corporation, one acre thereof having been previously sold to another party. These deeds were duly recorded on the 8th day of November, 1880. At the time of the execution and delivery of the deed last mentioned, Jones, the grantee therein, with his wife, made, executed, and delivered to Williams, one of the grantors, a land contract in the usual form, agreeing to sell and convey to Williams, his heirs and assigns, the land in question, upon being paid the sum of $1,500 and interest, at the time and in the manner therein prescribed. This contract was never recorded. Williams continued in actual occupancy of the premises, and with his family resided on the same until March 1, 1884. He claimed one 80-acre tract as his homestead, and the court below found that it was his homestead up to the time that he removed, under the circumstances hereinafter stated. On March 1, 1884, defendant Williams, by a writing made upon the back of said land contract, duly witnessed and acknowledged, surrendered, assigned, and set over unto defendant Robert D. Jones all his right, title, and interest in the contract, under an agreement made between himself, said Robert D. Jones and Thomas O. Jones, that the latter should sell and convey the land therein described to said Robert D. Jones for the sum of $2,600, of which sum $600 should be paid to Williams, and the balance-which was the amount then due upon the land contract-should be paid to Thomas O. Jones. Thereupon the latter conveyed the premises to Robert D. Jones. As agreed upon, $600 of the amount to be paid for the land was paid to Williams, and on March 1, 1884, he removed from the same, surrendering possession to the purchaser. In the year 1883, three separate money judgments had been obtained against Williams, and duly docketed in the office of the clerk of the district court for the county in which this land was situate, aggregating in amount the sum of $444.27. In two of these, plaintiff and one Perry were the judgment creditors. The plaintiff has, by proper assignment, succeeded to Perry's interest in these judgments, and he was the sole creditor named in the third judgment. No part of the judgments has been paid, except $236 on March 27, 1884. Executions were duly issued and placed in the hands of the proper officer, where they remained wholly unsatisfied when this action was commenced. The trial court found, in addition to the facts above stated, that none of these instruments executed and delivered by the defendants above named were made or procured with fraudulent design. It also found that the purchaser knew, at the time of the sale and conveyance to him on March 1, 1884, that Williams had obtained the sum of $1,500 from Thomas O. Jones in 1880, for the purpose, and that it was used in paying the railway company for the land, and that thereupon the conveyance, absolute in form, from Williams and wife to said Jones, and the land contract signed by the latter, were executed and delivered. On the findings it was adjudged, as matters of law by the court below, that the deed from Williams and wife to Thomas O. Jones, and the contract from the latter to Williams, constituted a mortgage upon the land, and that upon a surrender of the contract by Williams, and the conveyance to Robert D. Jones, the absolute title to the land vested in the latter. Judgment was entered on these findings and order in favor of defendants, and from this judgment plaintiff appeals.

The appellant concedes that the transaction of November 5, 1880, in...