Morrison v. Mendenhall

• Decision Date: 01 January 1873
• Citation: 18 Minn. 212
• Parties: DORILUS MORRISON v. R. J. MENDENHALL.
• Court: Minnesota Supreme Court

Page 212

18 Minn. 212

DORILUS MORRISON

v. R. J. MENDENHALL.

Supreme Court of Minnesota.

Appeal by defendant from a judgment of the district court, Hennepin county.

Action to determine adverse claims to certain lots in the city of Minneapolis.

Plaintiff claimed under the foreclosure of a mortgage executed by Charles Hoag to Sidle, Wolford & Co., by them assigned to one Lewis, and foreclosed by him under the power. The defendant claimed under a deed from Hoag subsequent to the mortgage.

Lochren & McNair, for appellant.

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Cornell & Bradley, for respondent.

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BERRY, J.

On the third day of June, 1857, Jacob K. Sidle, Peter Wolford, and James N. Blair entered into an agreement under seal, containing, among others, the following provisions, viz.: "The said parties have this day agreed to enter into partnership to engage in the following business, namely, to let or loan moneys, buy and sell real estate, enter and locate lands, etc., and do business under the name and style of Sidle, Wolford & Co. The capital now amounts to $6,300, and was paid in as follows, viz.: By Sidle $1,100, by Wolford $2,900, and by Blair $2,300, with the understanding that the capital may be increased to any amount agreed upon by the parties; each of said parties to be entitled to the profits made in proportion to the amount of capital paid, and all losses sustained to be borne in the same proportion. The business of the company or copartnership, to be transacted in the western territories or states, and by the said J. K. Sidle, for which services he shall receive at the rate of $50 per month, together with boarding and washing, which shall be paid by the parties in proportion to the amount of capital paid, as well as all other expenses necessary to conduct said business." On the first day of November, 1858, Charles Hoag and his wife, as parties of the first part, executed a mortgage of real estate to parties of the second part, described in said mortgage as Jacob K. Sidle, Peter Wolford, and James N. Blair, doing business under the firm name of "Sidle, Wolford & Co., * * * of the second part."

The mortgage was executed to secure two notes, which are referred to in the mortgage, as follows: "Provided, nevertheless, that if the said Charles Hoag, one of the said parties of the first part, * * * shall well and truly pay, or cause to be paid, to the said Jacob K. Sidle, Peter Wolford, and James N. Blair, parties of the second part, their heirs, executors, administrators, or assigns, the sum of $1,560 * * * according to the conditions of two certain promissory notes * * * made by the said Charles Hoag, and delivered to the said parties of the second part, * * * which said notes, respectively, are bearing even date herewith," etc. Said mortgage was duly recorded.

On the eighteenth day of May, 1859, an instrument was executed in the words and figures following, viz.:

"Know all men by these presents, that Jacob K. Sidle and Peter Wolford, for themselves, and James N. Blair, (by his attorney in fact, the said Jacob K. Sidle,) doing business under the firm of Sidle, Wolford & Co., mortgagees, named in" the mortgage aforesaid, "for and in consideration of the sum of fourteen hundred and one dollars, well and truly paid to them by Edward Lewis, * * * the receipt whereof at the date hereof is hereby acknowledged, have bargained, sold, transferred, and assigned, and by these presents do bargain, sell, transfer, and assign unto said Edward Lewis, his heirs and assigns, the said mortgage with the promissory notes accompanying the same, and all right, title, and interest therein, and to the premises mortgaged, and to all moneys due or to become due thereon. Witness our hands and seals the eighteenth day of May, 1859.

                "Witnesses:                   "J. K. SIDLE,         [Seal.]
                  "W. M.                      "PETER WOLFORD,       [Seal.]
                  "J. W.                      "J. N. BLAIR, by      [Seal.]
                                              "J. K. SIDLE, his Atty. in fact."
                

This instrument was acknowledged by Wolford and Sidle, each for himself, and by Sidle as attorney in fact for Blair and was duly recorded May 23, 1859. In December, 1860, Lewis, claiming to be assignee of the mortgage by virtue of the foregoing instrument, foreclosed by advertisement. Our statute then provided that to entitle any party to foreclose a mortgage by advertisement, it shall, among other things, "be requisite * * * that the mortgage * * * has been duly recorded, and if it shall have been assigned, that all the assignments thereof shall have been recorded." Pub. St. c. 75, § 2. The manifest purpose of this requirement of the statute was to make the contents of the mortgage, and, as far as the statute goes, to make the title to the mortgage matter of record. This mode of foreclosure being altogether in pais, and having been devised (as it undoubtedly was) to avoid the delay and expense of judicial proceedings, it was for obvious reasons important, not only to the parties to the mortgage itself, and to the assignee, but to subsequent incumbrancers, creditors, and contemplating purchasers, that some permanent and accessible evidence of the existence and contents of the mortgage, and of the title to the same, should be provided.

This is unquestionably what was sought to be accomplished in a suitable, simple way, and convenient way, when the statute required the mortgage and all the assignments thereof to be recorded; and as it is for such purposes made necessary that all assignments shall be recorded, it follows that they must be so made that they can be recorded, that is to say, they must be in writing. A mere equitable or parol assignment would not answer.

But the statute has required nothing more to be recorded to authorize a foreclosure. In other words, it has expressly authorized foreclosure, if the mortgage and the assignments are recorded. Whether the spirit of this legislation would not have demanded that the authority under which the mortgage was executed, in case it was executed by attorney, as well as the authority under which an assignment was executed in a like case, should also have been spread upon the record, is an inquiry which readily suggests itself, not however as calling for a remedy at the hands of this court, but as proper to be addressed to the legislature. It is for us to say only that this mode of foreclosure, being a pure creature of the statute, it is sufficient to comply with the statute.

Whatever then the spirit of the legislation upon this subject might require in order that the apparent object of the legislature might be fully secured, it will not be inconsistent with the position taken that the assignment must be recorded, and, therefore, written to hold, as we shall presently come to do, that the authority to make the assignment need not be recorded.

The plaintiff in this case claims to have derived a good title to the mortgaged premises through the foreclosure sale made by Lewis as assignee aforesaid. And as there was no written assignment of the mortgage to Lewis, unless the instrument above recited be such, an important question in this case is, was that instrument a written assignment of the mortgage? We are of opinion that this question is to be answered in the affirmative.

The line of reasoning by which we arrive at this result leads us to consider first the articles of partnership. From the extract heretofore made from the same it appears that Sidle, Wolford, and Blair formed a partnership "to engage in the following business, namely: to let or loan money; buy and sell real estate; enter and locate lands," etc. Loans of money being thus expressly authorized by the partnership agreement, it would follow by reasonable and natural implication that such loans might properly be made in the usual way of doing such business; that they might be evidenced as such transactions usually are evidenced, as, for example, by the promissory note of the borrower; and that they might properly be made upon such security as customary and prudent modes of doing business of the kind required as, for instance, the loan might be secured by sureties, by a deposit of collaterals, or, as was done in this case, by a mortgage of real estate.

It being competent, then, for the firm in this case to take a mortgage of real estate in security of a loan of money, the next inquiry is, was the taking of this mortgage a partnership transaction? The mortgage runs to "Jacob K. Sidle, Peter Wolford, and James N. Blair, doing business under the firm name of Sidle, Wolford & Co., of the second part."

Defendant's counsel contends that the words "doing business under the firm name of Sidle, Wolford & Co.," are merely discriptio personarum, and that therefore the mortgage belonged not to the firm of Sidle, Wolford & Co., but to the persons named, as individuals, jointly. Upon the language of the mortgage alone we may assume that this is prima facie true. Bingham v. Stewart, 13 Minn 106, (Gil. 96;) Bank of Genesee v. Patchin Bank, 13 N. Y. 309. Yet if it be prima facie true there is no rule of law which makes it conclusively and indisputably true. If it was the intention to make the mortgage to the firm, and take it for the firm, so that it would be the property of the firm, it would be proper that it should run to the individuals composing the firm as mortgagees.

A conveyance of real estate, or of an interest therein, must run to some person, (a corporation being regarded in law as a person,) and a partnership, as such, not being a person, conveyances...