Morris v. Watson
| Decision Date | 01 January 1870 |
| Citation | 15 Minn. 165 |
| Parties | CHARLES A. F. MORRIS and Wife v. PHEBE T. WATSON, impleaded, etc, and others. |
| Court | Minnesota Supreme Court |
The action was to foreclose a mortgage. The complaint showed substantially these facts: The land constituting the town of St. Albans was entered as a town site under the act of congress by Hon. Moses Sherburne, judge of the district court, Hennepin county, September 13, 1856. At that time one Charles S. Hargin was the occupant of the real estate in said town described in the mortgage, and at his request the trustee, said Sherburne, executed a deed of such real estate to Mary C. Hargin, and said Charles S. Hargin then, as her attorney in fact and in her name, executed to said Sherburne the said mortgage, to secure him a claim for services, and for money expended in acquiring title to the town site, and chargeable to the land included in said mortgage. The deed, mortgage, and power of attorney from Mary C. to Charles S. were recorded, and the plaintiff Mary Ellen Morris is the assignee of the mortgage. The power of attorney from Mary C. to Charles S. Hargin was an ordinary power to rent, bargain, sell, and convey any and all real estate, etc
Masterson & Simons, for appellant.
L. M. Stewart, for respondent.
The complaint alleges that the conveyance in this case to Mary C. Hargin by Moses Sherburne, trustee, was made pursuant to the provisions of the act of the legislative assembly of the territory of Minnesota entitled "An act prescribing rules and regulations for the execution of the trust arising under the act of congress entitled `An act for the relief of citizens of towns upon lands of the United States under certain circumstances,'" approved March 3, 1855.
It must be presumed that Mary C. Hargin was the occupant and beneficial owner of the lands conveyed by the trustee, since occupancy by the beneficiary under the townsite law was necessary to entitle her to the deed. Carson v. Smith, 12 Minn. 563, (Gil. 458.) The trustee, the grantor in the deed, and his representatives are estopped from denying that fact in a proceeding of this kind.
It is the general rule of law that a power to sell and convey real estate does not confer a power to mortgage. The power of attorney in this case, executed by Mary C. Hargin to Charles S. Hargin, is a power to sell and convey only; therefore the mortgage executed by ...
To continue reading
Request your trial