Miller v. Fasler

• Decision Date: 17 January 1890
• Parties: MILLER v FASLER.
• Court: Minnesota Supreme Court

42 Minn. 366

44 N.W. 256

MILLERvFASLER.

Supreme Court of Minnesota.

Jan. 17, 1890.

(Syllabus by the Court.)

F., the owner of three several blocks of land which were incumbered by mortgage, conveyed one block to S., subject to the payment of the whole mortgage debt, which by the terms of the deed was assumed by the grantee, who also subsequently executed a second mortgage upon the block so conveyed. Held, that the effect of the stipulation in the deed was to charge the block in question with the payment of such prior mortgage, and the second mortgagee and his assigns are affected with notice of such charge or incumbrance upon the land mortgaged to them, and are bound by it; and they can acquire no title to the other blocks, under a redemption of the first mortgage from a sale upon foreclosure, which equity will permit them to assert against the first-named grantor, F.

Appeal from district court, Hennepin county; HICKS, Judge.

E. A. Sumner and M. A. Spooner, for appellant.

Brooks & Hendrix and George C. Ripley, for respondent.

VANDERBURGH, J.

The defendant being the owner of three blocks of land described in the complaint, designated as blocks 2, 3, and 4, which were all incumbered by a mortgage executed by one Cleveland in the sum of $1,000, did on the 17th day of September, 1886, grant and convey, by warranty deed duly recorded, to one Ellen Schurch, his daughter, block 4, expressly subject to the mortgage referred to, the payment of which was also by the terms of the deed assumed by her, as a part of the consideration of the deed. On the same day, also, the grantee mortgaged block 4 to one Wheelock for $2,000, subject to the mortgage first described. And thereafter, on June 16, 1887, such prior mortgage was foreclosed by advertisement, and the three blocks, 2, 3, and 4, were sold together as one parcel to one Leland, as purchaser, for the sum of $1,140. Shortly before the expiration of the time of redemption, and on June 15, 1888, the purchaser assigned her certificate of sale to one Broat, who immediately executed to the defendant Fasler, in due form, an instrument of release and discharge, under seal, from all claims under and by virtue of the Cleveland mortgage foreclosure, and the certificate thereof held by him of block 2 and 3 in question leaving the rights of the holder unchanged as respects block 4. The plaintiff, who had, previous to June 2, 1888, acquired by purchase and assignment the second mortgage upon block 4, running to Wheelock as above...