Miller v. M'Carty

CourtSupreme Court of Minnesota (US)
Writing for the CourtMitchell
Citation47 Minn. 321
Decision Date10 November 1891
PartiesJOHN MILLER <I>vs.</I> J. B. McCARTY.
47 Minn. 321
JOHN MILLER
vs.
J. B. McCARTY.
Supreme Court of Minnesota.
November 10, 1891.

Page 322

Plaintiff brought this action in the district court for Big Stone county to recover possession of two horses, two cows, and 250 bushels of wheat, of the alleged value of $325, mortgaged to him by the defendant. In his answer the defendant alleged title in himself to the horses and cows, and that they were exempt, and asked judgment for their return and damages. At the trial, before C. L. Brown, J., the facts appearing which are stated in the opinion, a verdict was directed for plaintiff. The defendant appeals from an order refusing a new trial.

F. L. Cliff, for appellant.

E. T. Young, for respondent.

MITCHELL, J.


The defendant bought of plaintiff a quantity of seed-wheat, and, as security for the purchase price, executed a "seed-grain" note, and also a chattel mortgage on two cows and two horses. Subsequently defendant, having discovered that a mistake had been made in the description of the land upon which the grain was to be sown, executed another seed-grain note, antedated as of the date of the first one, and of the same tenor, except that it described correctly the land upon which the grain was sown. During the intervening time, and after the grain was sown, one Clark attached the crops as the property of the defendant. The plaintiff claims that the second seed-grain note was executed merely to correct the mistake in the first one, while defendant claims that it was given and accepted as absolute payment of the first, and consequently had the effect of discharging the chattel mortgage. We think the undisputed facts in the case conclusively establish that the second note was given merely to correct the mistake in the first, and consequently did not affect the lien of the mortgage. Even if plaintiff had promised to satisfy the mortgage, the agreement would not have been enforceable, because without consideration. Undoubtedly one note may be accepted as payment of another, and in such case no consideration, other than the new note, is necessary to support the contract. But here the new note, when given, was merely a fulfilment of the original

Page 323

contract, and was nothing more than plaintiff was entitled to, or than the law would have compelled by correcting the instrument so as to conform to the actual agreement of the parties. The debt has never been paid, the mortgage has never been actually released, and default has been made in its conditions. Consequently plaintiff is entitled to the possession of the mortgaged property, unless his acts and conduct have been such as to operate in law as a discharge of the lien of the mortgage, or to estop plaintiff from asserting that lien against the defendant. The mortgaged property was exempt, while part of the crop covered by the lien of the seed-grain note was not; and the defence of the defendant is, in substance, that he had a right to require the plaintiff to first exhaust the non-exempt grain before resorting to the exempt property covered by the mortgage; that he made this demand, but that plaintiff and Clark, the attaching creditor, combining together to deprive him of this right, so conducted matters that the non-exempt grain was all applied on Clark's claim, leaving plaintiff's claim to be satisfied wholly out of the exempt property, and therefore plaintiff is now estopped from asserting the lien of his mortgage. Of course, in this defendant assumes that Clark's attachment lien was...

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1 practice notes
  • Miller v. McCarty
    • United States
    • Supreme Court of Minnesota (US)
    • 10 Noviembre 1891
    ...47 Minn. 32150 N.W. 235MILLERvMCCARTY.Supreme Court of Minnesota.Nov. 10, [50 N.W. 235](Syllabus by the Court.) 1. Where a mortgage covers both exempt and non-exempt property, the mortgagor has a right, both as against the mortgagee and as against a creditor having a lien, by judgment or th......
1 cases
  • Miller v. McCarty
    • United States
    • Supreme Court of Minnesota (US)
    • 10 Noviembre 1891
    ...47 Minn. 32150 N.W. 235MILLERvMCCARTY.Supreme Court of Minnesota.Nov. 10, [50 N.W. 235](Syllabus by the Court.) 1. Where a mortgage covers both exempt and non-exempt property, the mortgagor has a right, both as against the mortgagee and as against a creditor having a lien, by judgment or th......

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