Misener v. Gould

Decision Date01 January 1866
Citation11 Minn. 105
CourtMinnesota Supreme Court

foreclosure under which the plaintiff's property was sold to satisfy the defendant Van Brunt's indebtedness to the defendants Gould, relying solely upon the cases of Bidwell v. Whitney, and Johnson v. Williams, 4 Minn. [76,260]. The want of analogy between these cases, and the case at bar, is so glaring that it is difficult to perceive the object of the counsel in citing them. The first was an action for money had and received to recover the surplus in excess of seven per cent., for which a mortgagee had bid off upon foreclosure by advertisement, under a mortgage authorizing the collection of interest at 5 per cent. per month, and the form of the action is stated by the court, as one of the principal reasons for refusing relief. The other was an action to set aside a foreclosure, because the mortgagee had sold the entire land mortgaged, disregarding the equitable rights of the plaintiff to have a portion of the land, primarily liable, first sold. Even in this case, the true rule is correctly stated in Clowes v. Dickenson, 9 Cow. 402. The neglect to interpose the objection before the sale, does not deprive the party of his rights; but if, by delay, the property has passed into the hands of a bona fide purchaser, and in such case only, the sale will not be set aside, but the mortgagee will be compelled to account for its value. But the broad distinction exists in the case at bar, that the creditor, holding ample security for the payment of the principal debt, has voluntarily destroyed it in disregard of the rights of the surety. Whether this discharge was before or after the foreclosure of the mortgage is immaterial. In the case of the last mortgage, it is shown to have been afterwards, and the plaintiff not having then been injured, had no motive to enjoin the sale, as he had the undoubted right to allow the sale to proceed, and his property to be taken for the debt, relying upon his right to subrogation. If it be said that he should have filed his bill to have compelled the creditor first to exhaust the security, upon the principle that when one of two creditors has a lien upon two funds, and the other only one, the former will be compelled to resort primarily to the fund in which the other has no interest, we reply that this is not that case, but if it were, the rule in practice generally is to compel the creditor to place his securities at the disposition of the other claimant, after they have served the purpose of satisfying his own debt, without restraining him in their use in the first instance. 2 Eq. Lead. Cas. 275-6. If the discharge was before the foreclosure, and the security discharged was equal in amount and value to the principal debt, it released the plaintiff, and cancelled the mortgage on his property; Johnson v. Williams, 4 Minn. [260]; and his neglect to assert his rights at the foreclosure, could not waive them and impart to the mortgage renewed vitality, especially as at the commencement of the action and prior to the filing of the lis pendens no rights of third parties had intervened. Clowes v. Dickenson, cited ante.

Berry & Perkins and C. L. Lovell, for appellants.

Cole & Case, for respondent.


It is admitted by the appellants, that upon the facts found by the court the plaintiff stood in the relation of surety for Van Brunt, as to the indebtedness of the firm of Misener & Van Brunt, and that the defendants Gould had full notice of that fact, and by their own action in delivering to Van Brunt property of the firm, which they held in trust to pay the debts, the...

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1 cases
  • Hathorn v. Butler
    • United States
    • Minnesota Supreme Court
    • June 14, 1898
    ... ... 434 (457). The law and ... practice of this state do not require appellant to redeem ... Hill v. Edwards, 11 Minn. 5 (22); Meisner v ... Gould, 11 Minn. 105 (166); Folsom v. Lockwood, supra; ... Lowell v. North, 4 Minn. 15 (32); Johnson v ... Williams, 4 Minn. 183 (260); Bennett v ... ...

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